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A MANUAL OF MORAL THEOLOGY
A MANUAL :;;OF
MORAL; i^
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REV. THOMAS SLATER, SJ.
VOL I.
FIFTH AND REVISED EDITION
LONDON
BURNS OATES & WASHBOURNE LTD.
PUBLISHERS TO THE HOLY SEE
1925
NIHIL OBSTAT: \*\ / j
H. DAVIS, SJ. i ' : v, 1
IMPRIMI POTEST: ^
GULIELMUS BODKIN, SJ.
NIHIL OBSTAT:
J. R. McKEE, C.O.,
Censor deputatus.
IMPRIMATUR:
EDM. CAN. SURMONT,
Vicarius generalis.
WESTMONASTERII,
Die i a Decentbris, 1924.
Made and Printed in Great Britain
765751
PREFACE TO THE FIRST EDITION
THE object of the book which is herewith offered to the public
is to present the common teaching of the Catholic moral
theologians in an English dress. That common teaching is
to be had in innumerable works written for the most part in
Latin, but as far as I am aware there is no complete manual
of moral theology in English. Yet that such a book will be
found useful seems certain from the fact that works of the
kind exist in abundance in other modern languages. In
German we have Pruner, Probst, Linsenmann, and many
others; in French, the well-known works of Gousset and
Gaume ; in Italian, Frassinetti ; in Spanish, Villafuertes, Moran,
and others. It may then confidently be expected that especi-
ally the ecclesiastical students and Catholic clergy of English-
speaking countries will welcome a book intended chiefly for
their benefit. The writer is not without hopes of its doing
good even among non- Catholics. Among these the moral
theology of the Catholic Church is little understood and
constantly misrepresented and maligned. Of course, it does
not merit the bad reputation which has been fastened on it
by Protestant and Jansenist slander. It is the product of
centuries of labour bestowed by able and holy men on the
practical problems of Christian ethics. Here, however, we
must ask the reader to bear in mind that manuals of moral
theology are technical works intended to help the confessor
and the parish priest in the discharge of their duties. They
are as technical as the textbooks of the lawyer and the doctor.
They are not intended for edification, nor do they hold up
a high ideal of Christian perfection for the imitation of the
faithful. They deal with what is of obligation under pain of
sin; they are books of moral pathology. They are necessary
for the Catholic priest to enable him to administer the sacra-
v
vi PREFACE
ment of Penance and to fulfil his other duties ; they are intended
to serve this purpose, and they should not be censured for
not being what they were never intended to be. Ascetical
and mystical literature which treats of the higher spiritual life
is very abundant in the Catholic Church, and it should be
consulted by those who desire to know the lofty ideals of life
which the Catholic Church places before her children and
encourages them to practise. Moral theology proposes to
itself the humbler but still necessary task of defining what is
right and what wrong in all the practical relations of the
Christian life. This all, but more especially priests, should
know. The first step on the right road of conduct is to avoid
evil ; in the doing of good each will act according to his vocation
and opportunities, moved and stirred by the grace of God,
who works in all as he wills.
THOMAS SLATER, S.J.
PREFACE TO THE FIFTH EDITION
THE aim of this work was to state the Moral Theology of the
Catholic Church as clearly and briefly as possible. A large
portion of the Moral Theology of the Catholic Church depends
on positive law. Many changes of far-reaching consequence
were made in the positive law of the Church by the new Code
of Canon Law. The new Code canonizes the law of the
country on such important questions as Prescription and
Contract. It changes the nature of more than one diriment
impediment of Marriage. It alters numberless details on
many other points of Church law. In this edition I have tried
to bring my book into harmony with the existing law and teach-
ing of the Catholic Church.
T. SLATER, S.J.
October 15, 1934.
CONTENTS
PREFACE TO THE FIRST EDITION .
PREFACE TO THE FIFTH EDITION .
PACK
V
vi
Chapter I.
Chapter II.
Chapter III.
Section I.
Section II.
Section III.
Section IV.
Chapter IV.
Section I.
Section II.
Point i .
Point 2.
Point 3 .
Section III.
BOOK I
HUMAN ACTS
What is a Human Act ?
Voluntary Acts
Obstacles to Voluntary Action
Ignorance
Concupiscence . . .
Fear .
Violence .
The Morality of Human Acts
The Essence of Morality
The Sources of Morality
The Object ....
The End .
The Circumstances
On Merit ....
i
5
ii
ii
13
16
i7
19
19
21
22
22
25
26
BOOK II
CONSCIENCE
Chapter I. The Notion of Conscience
Chapter II. The Certain Conscience .
Chapter III. The Doubtful Conscience
Chapter IV. The Probable Conscience
Chapter V. The Scrupulous Conscience
29
3i
34
37
43
BOOK III
LAW
Chapter I. The Nature of Law
Chapter II. The Power of Making Laws
Chapter III. The Matter of Law
Chapter IV. The Subjects of Law
Chapter V. The Acceptance of a Law
vii
47
So
52
55
58
viii CONTENTS
PAGE
Chapter VI. The Obligation of Law .... 59
Chapter VII. The Interpretation of Law .... 62
Chapter VIII. What Excuses from Observing the Law . . 65
Chapter IX. The Cessation of Law 67
Section I. Custom . . 67
Section II. A Law Become Useless ..... 69
Section III. Dispensations ...... 70
Chapter X. Various Species of Law .... 73
Section I. Natural Law -73
Section II. Positive Divine Law ..... 74
Section III. Ecclesiastical Law ..... 75
Section IV. Penal and Voiding Laws .... 76
Section V. Civil or Municipal Law ..... 78
Section VI. Privileges . . . . . . . . 80
BOOK IV
SIN
PART I. SIN IN GENERAL
Chapter I. The Nature of Sin 83
Chapter II. The Gravity of Sin 85
Chapter III. Different Species of Sins ..... 89
Chapter IV. Numerical Distinction of Sins . . . .91
PART II. CERTAIN KINDS OF SINS
Chapter I. Sins of Thought ...... 94
Chapter II. The Capital Vices 97
1. Pride 97
2. Covetousness ........ 99
3. Lust .......... 100
4. Anger ......... 100
5. Envy . . . . . . . . . 101
6. Sloth ......... 102
7. Gluttony 103
BOOK V
THE THEOLOGICAL VIRTUES
PART I. FAITH
Chapter I. Necessity of Faith . . . . . .105
Chapter II. External Profession of the Faith . . . 108
Chapter III. Sins against Faith . . . . . .in
CONTENTS ix
PART II. HOPE
PAGE
Chapter I. Nature of Hope 113
PART III. CHARITY
Chapter I. Nature of Charity 115
Chapter II. Well-Ordered Charity 117
Chapter III. Love of Enemies . . . . . .120
Chapter IV. Almsgiving . . . . . . .123
Chapter V. Fraternal Correction . . . . .126
Chapter VI. Scandal . . . . . . .129
Chapter VII. Co-operation in Another's Sin . - . . . 132
BOOK VI
THE PRECEPTS OF THE DECALOGUE
PART I. THE FIRST COMMANDMENT
Chapter I. The Matter of the Commandment . . . 135
Chapter II. Prayer . . . . . . .136
Chapter III. Worship . . . . . . .138
Chapter IV. Superstition . . . . . .140
Section I. Wrong Ways of Worshipping God . . .140
Section II. Idolatry . . . . . . . 141
Section III. Divination . . . . . . .141
Section IV. Vain Observance . . . . . .144
Chapter V. Tempting God . . . . . .146
Chapter VI. Sacrilege ....... 147
Chapter VII. Simony . . . . . . .151
PART II. THE SECOND COMMANDMENT
Chapter I. The Irreverent Use of God's Name . . . 154
Chapter II. Blasphemy . . . . . . 155
Chapter III. Oaths ........ 157
Chapter IV. Vows ........ 161
PART III. THE THIRD COMMANDMENT
Chapter I. Hearing Mass of Precept . . . . .169
Chapter II. Servile Work . . . . . . 174
PART IV. THE FOURTH COMMANDMENT
Chapter I. Duties of Children to Parents .... 176
Chapter II. Duties of Parents to Children . . . 179
Chapter III. Duties of Relatives and Guardians . . .183
x CONTENTS
PAGE
Chapter IV. Obligations of Husband and Wife . . .185
Chapter V. Duties of Masters and Servants . . .186
Chapter VI. Duties of Masters and Scholars . . .191
Chapter VII. Duties of Ecclesiastical and Civil Rulers and
their Subjects ...... 192
PART V. THE FIFTH COMMANDMENT
Chapter I. Suicide . . 194
Chapter II. Capital Punishment . . . . .196
Chapter III. Justifiable Homicide . . . . .198
Chapter IV. Killing the Innocent ..... 200
Chapter V. Duelling 204
Chapter VI. War 206
PART VI. THE SIXTH AND NINTH COMMANDMENTS
Chapter I. The Nature of Impurity .... 209
Chapter II. Consummated Sins of Impurity . . .212
Chapter III. De Peccatis Consummatis contra Naturam . 215
Articulus I. De Pollutione . . . . . .215
Articulus II. De Sodomia . . . . . .217
Articulus III. De Bestialitate ...... 218
Chapter IV. Non-consummated Acts of Impurity . .219
PART VII. THE SEVENTH AND TENTH COMMANDMENTS
DIVISION I. ON JUSTICE AND RIGHT
Chapter I. Nature of Justice and Right .... 222
Chapter II. Objects of Ownership ..... 226
Chapter III. Who May Own Property . . . .230
Section I. General Principles . . . . .230
Section II. Property Rights of Minors . . . .231
Section III. Property Rights of Married Women . . 233
Section IV. Property Rights of the Church . . . 234
Section V. Property Rights of Clerics .... 236
Chapter IV. Title to Property ...... 242
Section I. Occupation ....... 242
Section II. Accession ....... 244
Section III. Prescription ....... 246
DIVISION II. THE VIOLATION OF JUSTICE
Chapter I. Injuries in General ...... 250
Chapter II. Theft ........ 252
CONTENTS xi
DIVISION III. ON RESTITUTION
PAGE
Chapter I. Restitution in General . . . . .255
Chapter II. First Root of Restitution . . . .256
Section I. Possession of Another's Property in Good
Faith ....... 256
Section II. Possession of Another's Property in Bad Faith 259
Section III. Possession of Property in Doubtful Faith . 260
Chapter III. Second Root of Restitution .... 262
Section I. Damnification in General .... 262
Section II. Particular Cases of Damnification . . . 265
Chapter IV. Co-operation in Injustice .... 269
Chapter V. Circumstances of Restitution .... 273
Section I. To Whom Restitution is to be Made . . 273
Section II. How Much is to be Restored .... 274
Section III. Order of Making Restitution .... 276
Section IV. Manner of Making Restitution . . . 278
Section V. Time and Place of Making Restitution . . 279
Chapter VI. Causes Which Excuse from Making Restitution 281
Chapter VII. Occult Compensation ..... 283
PART VIII. THE EIGHTH COMMANDMENT
Chapter I. Rash Judgements ...... 284
Chapter II. Detraction ....... 286
Chapter III. Contumely . . . . . . .289
Chapter IV. Lying .. ^ ..... 290
Chapter V. Secrets . . . . . . . . 294
BOOK VII
CONTRACTS
PART I. CONTRACTS IN GENERAL
Chapter I. Nature of Contract ...... 297
Chapter II. On Consent ....... 300
Chapter III. Capacity of Parties . . . . . .303
Chapter IV. The Matter of Contract ..... 305
Chapter V. Consideration and Effects of Contract . . 308
Chapter VI. Discharge of Contract . . . . .311
PART II. SPECIAL CONTRACTS
Chapter I. Promises 312
Chapter II. Gifts 314
Chapter III. Wills 315
Chapter IV. Mutuum and Usury . . . . .321
xii CONTENTS
PAGB
Chapter V. Sale ........ 327
Article I. Sale of Goods ...... 327
Article II. Sale of Real Property 334
Chapter VI. Sale by Auction . . . . . .336
Chapter VII. Monopolies 338
Chapter VIII. Bailment 34 1
Chapter IX. Principal and Agent . . . . -344
Chapter X. Partnership ....... 347
Chapter XL Leases ....... 349
Chapter XII. Insurance . . . . ... . 351
Chapter XIII. Gaming and Wagering Contracts . . -353
BOOK VIII
THE COMMANDMENTS OF THE CHURCH
Chapter I. On Keeping Certain Days Holy . . -357
Chapter II. Fasting and Abstinence . . . . .360
Chapter III. Annual Confession ...... 363
Chapter IV. Easter Communion . . . . . -365
Chapter V. Support of Pastors . . . . . .366
BOOK I
HUMAN ACTS
CHAPTER I
WHAT IS A HUMAN ACT ?
i. THE Christian faith teaches that the end of human life
is to know, love, and serve God. If a man fulfils this obliga-
tion faithfully till death, it further gives him the assured hope
of eternal happiness with God in heaven. All our actions
should be directed towards the end for which the whole man
exists ; if an action is such that it conduces to that end, it is a
good, moral action; if, on the contrary, it does not conduce
to that end, it is a bad, immoral action.
Not all man's actions, however, are capable of being invested
with this moral quality. There are many actions of man
which have no more moral quality than the growth of a tree
in the garden or the running of a dog in the street. Good
or bad digestion is an operation to a great extent removed
from man's control; he is in general no more responsible for
it than for the condition in which he was born. Or, if some
immoral picture is suddenly thrust under his eyes, he cannot
help seeing it. Such acts are neither moral nor immoral;
they are neither capable of conducing to the end of moral
human action, nor of diverting the agent from it : they merit
neither praise nor blame.
2. A man is a good man morally if he performs well the
good actions over which he has control ; he is a bad man if
he wilfully performs bad actions. So that the actions over
which a man has control, the actions which he freely performs,
are alone capable of making him a good or a bad man ; they
are the only actions of man which have a moral quality ; they
alone are treated of in moral theology. It is the task of moral
theology to frame rules for human conduct according to the
teaching of the Catholic Church, to decide what actions are
good and what bad according to the principles of the Christian
faith.
3. The actions over which a man has control are in a special
sense called human acts, because they are due to his free
i. i
2 HUMAN ACTS
choice. That man has the power of free choice or free will,
is clearly taught in Holy Scripture, and is a dogma of faith. 1
It is also a truth of sound philosophy, 2 vouched for by the
consciousness of each individual and by the common sense
of mankind. It does not belong to our province to prove the
doctrine. We suppose that, at any rate in many of his daily
actions, when all the conditions requisite for action are present,
a man is free to act or not, to perform this action rather than
that other. A man must indeed have a motive for action,
but that motive does not constrain him to act ; if he has the use
and control of his reason, he may as long as he is in life perform
or abstain from the action proposed to him. Man has the
wonderful power, unique in all the visible creation, of directing
his mental and bodily activity in this way or that according
to his good pleasure; and it is this wonderful power which
makes him a moral agent, and makes it worth while to
discuss and formulate rules of human conduct. Man himself
is the cause of his human acts ; he freely directs them to the end
of human existence, or to some perverse end of his own choice.
4. This power of free choice is a property of the rational
will, and is the natural complement of the deliberative reason
with which man is also endowed. For among the various
objects offered to the will's acceptance, the reason can propose
motives for the selection of one object rather than of another,
and, at any rate in many actions, until the deliberation is
finished, the will need not decide between them. If an object
capable of satisfying all our desires were presented to us,
there would indeed be no room for deliberation; as Dante
expresses it :
Such one becomes, admiring that blest Ray,
That, whatsoever else allure the sight,
Impossible it is to turn away;
Because the one sole wished-for Good is there,
And everything defective elsewhere found,
In it is perfected beyond compare.
Paradise, xxxiii 100. Wright's translation.
In the presence of such an, object, the whole man, with all
the vehemence of his will made for good, would rush into
the embrace of his God. For God alone is capable of wholly
satisfying all man's desires. Or again, if some object of ardent
natural desire were suddenly thrust upon us, leaving no time
for deliberation, overwhelming us with the idea of its power
1 Ecclus. xxxi 10; Trent, sess. 6, can. 5, 6.
2 M. Maher, Psychology, 5th ed., p. 394,
WHAT IS A HUMAN ACT ? 3
to satisfy our appetite, it might be that no room was left for
free choice, that we should be necessitated to action. There
would be at least some indeliberate motion towards the object,
a movement of the will which divines call motus primo-primus.
If in such a case the power of deliberation is not altogether
smothered, but is exercised, though imperfectly, the movement
of the will which follows is called secundo-primus. If the
power of deliberation is wholly wanting, the act which follows
cannot be sinful, however wrong objectively; if the act is
semi- deliberate, however grievously wrong in itself, it will
be imputed to the agent only as a more or less serious venial
sin. 1
These principles are of great importance for forming an
estimate of the moral guilt of children, of habitual drunkards,
of persons long habituated to sins of the flesh, and persons
with weak intellect.
It follows from what has been said that previous knowledge
of, and deliberation about, the object proposed by the intellect
to the will, is necessary to free and moral action, which is
defined by divines to be action which proceeds from man's
deliberative will. 2
5. Human acts are by theologians divided into various
classes :
(a) Internal acts are performed by the internal powers of the
soul ; external, by the bodily organs.
(b) Elicited acts are such as proceed immediately from the
will and are performed by it alone. They are usually said to
be six in number ; three having reference to the end, and three
others to the means for the attaining of the end. A wish is
a simple inclination of the will or an ineffectual desire of an
object; an intention is a firm resolve to attain an object by the
use of the appropriate means ; fruition is a peaceful delight
in the possession, real or imagined, of a loved object. The
act of selection between various means to an end is called
choice; if no alternative is offered by the intellect, acceptance
of the means by the will is called consent, though this term is
more commonly used of every act of acceptance by the will of
an object proposed to it ; use or execution is said of the act of the
will which applies the means chosen to the obtaining of the
end proposed.
Commanded acts are executed by other faculties than the
will by which they are commanded.
1 St Thomas, i-z, q. 77, a. 7.
2 St Thomas, 1-2, q. i, a. i.
4 HUMAN ACTS
(c) Natural acts are performed by man's faculties unaided
by divine grace; supernatural, by the help of God's grace.
(d) Good actions are conformed to the rules of morality;
bad actions are contrary to them ; those that are indifferent may
be good or bad according to circumstances.
(e) Valid acts are such as have all the conditions requisite,
and so produce their effect ; invalid acts are destitute of some
condition necessary to produce their effect.
CHAPTER II
VOLUNTARY ACTS
i. HUMAN acts, the subject-matter of moral theology, are
also called voluntary acts to distinguish them from such actions
as are produced under external compulsion. For voluntary
acts are the effect of an internal principle, the will (voluntas).
The term, however, is ordinarily used not of all actions which
are produced by an internal principle, for some of these are
specially denominated spontaneous or reflex actions. These
latter are the immediate result of sense excitation without the
intervention of consciousness. Thus the eyelid closes to
protect the threatened organ, and the hand rises involuntarily
to drive off a troublesome fly. Voluntary in the strict sense
is used only of actions produced by the will with rational
knowledge of, and inclination towards, the object. Voluntary
actions are produced with consciousness and deliberation.
Thus, practically and in the concrete, voluntary actions are
identical with human acts, though their connotation is different.
For human acts connote freedom, as we have seen, while an
act may be voluntary and yet not free. The beatific vision
by which the blessed see God face to face, and are thereby
thrilled with ineffable delight, is a voluntary act ; it proceeds
from the will with full and clear knowledge of God, but it is
not free ; the blessed cannot avert their gaze from the Infinite
Beauty which enraptures every fibre of their being. How-
ever, all voluntary acts of man are in this life free, and so, for
the purposes of moral theology, human acts and voluntary
acts are interchangeable terms.
2. An act may be voluntary in various ways :
(a) An act is perfectly voluntary if it proceeds from the will
with full knowledge and deliberation; if the knowledge and
deliberation are not full, the act is imperfectly voluntary.
(b) Simply or absolutely voluntary is distinguished from
voluntary under a certain respect, or secundum quid. More
commonly an action which under the circumstances is willed,
but which would not be willed if the circumstances were
different, is said to be simply or absolutely voluntary; while
inasmuch as the same action would not be willed if the cir-
6 HUMAN ACTS
cumstances were different, it may also be said to be only
voluntary under a certain respect. Thus, to take the well-
worn example, when the merchant is willing in a storm that his
goods should be thrown overboard to save the ship, the action
is simply voluntary; he would not will it unless the ship were
in danger, so that it is also voluntary only under a certain
respect.
(c) An action is said to be voluntary in itself when it is in
itself and by itself the object of the will ; if it is merely the
effect of something else which is willed, it is then called
voluntary in something else, or voluntary in the cause.
Frequently directly and indirectly voluntary are used in the
same sense as voluntary in itself and voluntary in the cause.
3. All voluntary action is imputed to the agent for praise or
blame, merit or demerit ; for the action is free, as we have seen,
and proceeds from a positive inclination of the will. This
inclination of the will is an important element in voluntary
actions ; the absence of it prevents the sin of man being imputed
to God as voluntary, and the same principle sometimes justifies
us in performing an action which is right in itself, though
some of its effects are evil. But this is an important point and
requires fuller treatment.
First of all then, let us see what is required before an evil
effect of my action can justly be imputed to me and make me
morally guilty.
(a) The evil effect must in some measure be foreseen, other-
wise it will be involuntary and not imputable. And so no
moral blame attaches to a man who, thinking that he is drinking
water, swallows poison.
(b) The agent must be able to prevent the evil effect, for we
are only responsible for what is under our control. The
engine-driver of an express train is not responsible for the
death of a person who suddenly throws himself under the
wheels of the engine.
(c) There must be an obligation not to perform the action
by reason of the evil effect which would follow from it. If
the evil effect follows merely by accident, it does not render
an otherwise lawful action unlawful, and I am not bound to
abstain from it on account of the mere possibility of the evil
effect following from it. Thus, if a hundred people indulge
in hunting or motoring for a considerable time, some one of
them is morally certain to meet with an accident endangering
life or limb. But this does not make hunting or motoring
morally wrong. Though I am conscious that the accident
VOLUNTARY ACTS 7
may happen to me, I may nevertheless hunt or use the motor-
car as usual. If I kill myself or someone else, it will be merely
by accident, for it is presumed that I use reasonable care to
avoid mishap.
On the other hand, a superior, whose commands I am bound
to obey, may have used his authority to forbid an action on
account of the possible evil effect which may follow therefrom.
In that case I must abstain from the action by reason of the
command of my superior, though otherwise I should be free.
And so if a father, for special reasons, forbids his son to go
to the theatre, the son should obey, as long as he is subject
to parental authority. Again, even though there may be no
positive command of a superior, in cases where no good would
come from the action, and where the only effects would be
evil, I am bound to abstain from the action, which in that
case itself becomes evil. Similarly, where the evil effects are
largely in excess of the good, right reason tells me that I must
abstain from the action. But there are many actions which
are forbidden by no lawful authority, which have both good
and evil effects, while it is not clear that the latter largely
outweigh the former. Am I bound to abstain from such
actions, or when am I bound to abstain from them ?
4. In order to provide a general rule of conduct in such
circumstances, divines have formulated what is known as the
principle of a double effect. That principle may be enunciated
as follows :
It is lawful to perform an action which produces two effects,
one good, the other bad, provided that (i) the action, viewed
in itself, is good, or at least indifferent; (2) the agent does
not intend the evil effect, but only the good ; (3) the good effect
is produced as immediately as that is, not by means of
the bad ; and (4) there is a sufficiently weighty reason for
permitting the evil effect.
This rule will furnish us with a guide in case of doubt
whether we are bound to abstain from any given action because
of some evil effect which will follow from it. We shall be at
liberty to perform the action in question provided that four
conditions are realized. In the first place, the action itself,
apart from the evil effect, must not be bad. If it is bad in
itself, there can be no question about its lawfulness. Further,
the agent must not intend the evil effect, though he foresees
that it will follow. If he intends it, the evil effect becomes
voluntary in itself and imputable to the agent. Then, the
good effect must not be the result of the bad, for we must
8 HUMAN ACTS
not do evil that good may come ; the end does not justify the
means. 11 Lastly, there must be such a proportion between the
good and bad effects that right reason tells me that I am not
forbidden to forego the good effect of the action on account
of the bad being inextricably bound up with it.
The question as to whether a general is justified in ordering
his army to take a stronghold by assault in war will serve to
illustrate the principle and its use. In the first place, the
assault must be justified by itself, apart from the cost in human
life. The assault will be justified in itself if the war is just
and the stronghold belongs to the enemy ; it will not be justified
if the war is one of unjust aggression, or if the general has
been expressly ordered by his Government not to take the
place. Moreover, the general must not directly intend the
necessary loss of life among the innocent non-belligerents.
He foresees and deplores it ; he is said in the technical language
of theology to permit the evil effect, not to intend it. The
slaughter of innocent non-belligerents must not be the means
chosen to capture the stronghold; evil may not be done that
good may come. Finally, the capture of the place must be
a matter of sufficient importance in the war to warrant the
shedding of innocent blood in the bombardment, and the
other evils necessarily entailed in an assault. The question
as to when the good result is sufficient to outweigh the evil is
largely a matter of sound judgement after a careful examination
of all the circumstances. If the successful storming of the
place would only add to the personal reputation of the general
without bringing the end of the war any the nearer, the assault
would be a crime; if it would compel the enemy to sue for
peace, it would usually be justified.
This principle is of great importance in Moral Theology;
it has in its support the common consent of divines, and is
expressly used by St Thomas. 2
5. If I am not justified, according to the foregoing principle,
in performing an action which causes some evil effect, that
evil effect is imputable to me though I did not intend it in
itself; it is not indeed voluntary in itself, but it is voluntary
in its cause, and I am bound to avoid evil even though only
voluntary in its cause.
When, however, evil is not voluntary in itself, but only
voluntary in its cause, a question arises concerning the degree
of moral guilt which is contracted when such a cause of evil
is posited unwarrantably. The case arises especially when
1 Rom. iii 8. 2 Summa, 2-2,, q. 64, a. 7.
VOLUNTARY ACTS 9
grave evil is the result of an action which in itself is only
venially sinful, as when grave harm is the result of slight
negligence. Of course, great evil arising from grave negligence
is seriously sinful even though only voluntary in the cause;
and so a doctor who through grave negligence kills his patient
is guilty of a great sin, though he did not intend the homicide.
But supposing that in passing through a gate in the country
I leave it open, owing to slight negligence, and in consequence
a neighbour's crop is seriously damaged by his cows getting
among the corn ; do I commit a grave sin in that case ? Of
course, if owing to the circumstances I clearly foresaw that
the damage was certain to follow and I could easily have closed
the gate if I chose, I certainly sin grievously in not closing it ;
the negligence is then grave. But our case supposes circum-
stances to be such that the negligence is only slight, partly on
account of the uncertainty of harm following, partly because
I had frequently seen the gate standing open, and for other
reasons. Will the neglect to close the gate after me in such
circumstances be grievously sinful on account of the serious
harm to my neighbour which was the consequence ? The
answer must be " No." For the harm did not follow neces-
sarily and exclusively from my neglect ; my action was not the
immediate and necessary cause of the damage done to the
crop; other agents intervened; my action was only slightly
responsible for what followed. Inasmuch, then, as the malice
of the cause is only slight, and this alone is voluntary in itself,
the evil effect which is only voluntary in the cause will be
imputed only as a venial sin.
6. Theologians dispute about the question whether such a
sin of omission as is committed by not closing the gate after
me, with resulting loss to my neighbour, can be committed
without a special act, by simply neglecting to put the act which
was of obligation.
The question is not a very practical one; it will be sufficient
to say in reply that physically a man who adverts to the obliga-
tion of doing something may hold himself neutral, and so sin
by omission without doing anything; practically, however, in
such cases, a positive determination is formed not to perform
the duty, or at least to perform something else which is fore-
seen to be an obstacle to the performance of the duty. 1
7. The question sometimes arises at what time a sin of
omission or a sin which is voluntary only in the cause is com-
mitted. When a man gets drunk on the Saturday evening
1 Suarez, tract. 5, d. 3, sec. 2, n. 6.
io HUMAN ACTS
and foresees that in consequence he will not be able to attend
Mass on the following day, is the sin of omitting to hear Mass
committed on the Saturday night, when he voluntarily posits
the cause of his not hearing Mass on the following day, or on
the Sunday, when Mass is not heard as is of obligation ?
Inasmuch as a formal sin is a human act, it would seem that
we must say with St Alphonsus 1 that the sin is committed
when the cause of the omission or of the evil is voluntarily
posited, otherwise we should have to say that a man may
commit sin without knowing it, or while he is asleep.
1 TheoL Mor. lib. 5, io.
CHAPTER III
OBSTACLES TO VOLUNTARY ACTION
WE have seen that we are responsible only for those actions
which are performed with knowledge or advertence and
freedom of choice. Whatever tends to prevent or lessen
advertence, or to restrict liberty, will tend to diminish our
responsibility. Ignorance affects advertence, fear and violence
influence freedom of choice, and concupiscence influences
both. Something must now be said on each of these causes
which affect the voluntariness and imputability of our actions.
SECTION I
On Ignorance
1. Ignorance is the absence of knowledge which the person
who is ignorant should have. It is thus distinguished from
nescience, which is merely the absence of knowledge, without
the implication that the knowledge should be possessed.
Ignorance must also be carefully distinguished from error
or mistake, which is a false judgement concerning something.
Thus, if I simply do not know the person to whom I am
speaking, I am in ignorance of his identity ; if I mistake him
for someone else, I am in error.
2. (a) With reference to the subject who is ignorant,
ignorance is either invincible or vincible.
Invincible ignorance cannot be dispelled by the use of
ordinary diligence. This may arise in my mind either because
no thought of my want of knowledge occurs to me, and so the
idea of making inquiries never enters into my head, or because
I have failed to acquire knowledge on the point, though I made
all reasonable efforts to do so. What efforts should be made
in any given case depends on the character and circumstances
of the person and the matter on which he is ignorant. If the
matter is of great importance, if it affects the salvation of souls
or the spiritual and temporal welfare of large numbers, great
efforts must be made to dissipate ignorance ; the efforts which
would be sufficient in the case of one poorly instructed, or
very much occupied with other weighty affairs, would not be
ii
12 HUMAN ACTS
sufficient in other cases where these suppositions are not
verified. In general, where knowledge is of obligation those
efforts must be made to acquire it which ordinarily prudent
and good men would exert in the circumstances.
Vincible ignorance is such as can be removed by the use
of the requisite diligence. Various degrees are distinguished
by divines according as some, or little, or no diligence is
exercised to dispel it or means are used to foster it. If means
are used to foster it, the ignorance is called affected; if little
or no diligence is used to dispel it, it is called crass or supine;
if some diligence is used, but not what is required in the case,
it is called simply vincible ignorance.
(b) With reference to the object of ignorance, we must dis-
tinguish ignorance of law, fact, and penalty. There is ignor-
ance of law, if the law's existence is not known, as when a
Catholic does not know that the Church forbids marriage
within the third degree of kindred. There would be ignorance
of fact, if it were not known that A. B. is related to C. D.
within the third degree. Ignorance of the penalty is distin-
guished from ignorance of law when some special sanction
is not known, though the law itself is known.
(c) With reference to the action of the subject, we distin-
guish antecedent, consequent, and concomitant ignorance.
Antecedent ignorance is not voluntary, it is not willed by the
subject ; consequent ignorance is voluntary ; concomitant is not
expressly willed, but the action which is done with concomitant
ignorance would ex hypothesi be done, even if the ignorance
did not exist.
3. Invincible ignorance, as defined above, excuses from
fault, so that, however bad an action done in invincible ignor-
ance may be, it cannot be a formal sin. The reason is obvious ;
there is no knowledge in the agent of the malice of the action,
and so the bad action is involuntary, and not imputable. 1
4. Vincible ignorance of the malice of the act, however,
cannot excuse one who does wrong. He does not indeed will
the evil in itself, but he wills its cause, and so it is voluntary
in its cause and imputable. A person who sins in simply
vincible ignorance, or even in crass ignorance, is indeed less
blameworthy than one who sins with full knowledge of the
malice of his act; the sin is only imperfectly voluntary, and
less imputable than if perfectly voluntary. There is an
apparent difference of opinion among theologians as to whether
affected ignorance increases or lessens the malice of a wrong
Prop. 2 damn, ab Alex, viii; 68 inter Baianas, can. 2,2,02.
OBSTACLES TO VOLUNTARY ACTION 13
action. With many modern authors it seems best to dis-
tinguish the motive with which in each case ignorance is
fostered. If the state of ignorance is fostered through fear of
being compelled by knowledge to abstain from the sinful act,
such affected ignorance would seem to lessen the malice of
the sin; the wrongdoer would not in this case venture to sin
if he had full knowledge, and so he fosters his ignorance; his
will is less malicious than if he sinned with full deliberation
and consent. If, on the contrary, he merely fosters his
ignorance to be able to plead it in excuse, and he is so bent
on sinning that he would do the act in the same way even if
he had full knowledge of its malice, then it does not seem to
diminish the sin ; it is rather a sign of an absolute determination
to commit the sin. 1
We saw in a former chapter that the degree of malice which
attaches to a sin committed in more or less culpable ignorance
is measured rather by the sinfulhess of the neglect to put
away the ignorance, than by the sinfulness of the act in itself.
5. Ignorance itself of what we are bound to know, as of the
obligations of our state of life, of the truths of faith which are
necessary to salvation, is sinful if consequent and vincible;
antecedent and invincible ignorance is of course not sinful.
6. Ignorance does not render an act invalid which has all
other requisites for its validity; and so baptism conferred by
one who knows nothing about its effects will be valid, if the
matter and form are correctly applied with the intention of
doing what the Church does. Substantial error or mistake about
the person with whom marriage is contracted will invalidate
the contract, while ignorance of who the person is will not,
if there be the will to marry.
SECTION II
On Concupiscence
i. In theology concupiscence is used in two distinct senses.
It frequently signifies the inclination to evil, which in human
nature is a result of the fall of our first parents. In this sense
it is called sin by the Apostle. 2 Without any moral or im-
moral implication the word is used here to denote any passion
or any movement of the sensitive appetite towards its proper
object. It comprehends, therefore, any movement of love,
desire, or hatred, sorrow, anger, or delight.
1 Bucceroni, i, n. 51, can. 2229.
2 Trent, sess. 5, de pec. orig.
H HUMAN ACTS
Concupiscence is antecedent or consequent. The former
precedes any action of the will, and so is involuntary. The
latter is voluntary, either because it is deliberately and directly
excited by the will, or at any rate willed in its cause.
2. Antecedent concupiscence lessens the malice of an evil
action which is done under its impulse. For concupiscence
troubles the intellect, so that it cannot dispassionately weigh
the moral quality of the object proposed to the will and the
motives for rejecting it; moreover, concupiscence paints the
object in more than naturally attractive colours, so that it
exerts an undue influence on the will. Concupiscence thus
disturbs the indifference of the will and renders the act which
follows less voluntary and free. It is accordingly less im-
putable to the agent.
It sometimes happens that antecedent concupiscence renders
the subsequent action involuntary, and so in no wise im-
putable, however wrong it may be. This will be the case
when some sudden onslaught of passion deprives the agent of
the use of reason and blindly impels him to evil. Strong
passions, such as love or anger, especially in impressionable
natures, sometimes produce this result, and even when murder
or suicide is committed in such circumstances juries are
warranted in bringing in a merciful verdict of murder or
suicide while temporarily insane. If, however, the passion
was not altogether antecedent, but in the early stages of its
onslaught there was room for deliberation, the consequent evil
will not be altogether involuntary; it will to some extent be
voluntary in its cause at least. 1
[3 . It used to be a matter of dispute among theologians whether
a man could be insane and not responsible for his actions in
some one category, while he retained his self-control in others.
In our days it will hardly be disputed that monomania exists,
and if it exists, as, for example, in the matter of intoxicating
drink, the monomaniac will not be directly responsible for his
actions done under the influence of his madness, although he
may be responsible for them in their cause. 2
1 St Thomas, 1-2, q. 77, a. 7, can. 2206.
2 Similarly, those who suffer from illusions may be so demented
on the particular point as not to be responsible for actions which
they perform under the influence of their illusion. It is a question
of fact when this is the case, a fact which it is difficult even for experts
to determine.
Natural propensities to evil arising from hereditary taint or from
temperament lessen the voluntariness of the action just as passion
does, but they are not as a rule so strong as to make what in itself is
OBSTACLES TO VOLUNTARY ACTION 15
4. Consequent concupiscence increases the malice of a bad
action if it is wilfully excited, because the tendency of the will
to evil is voluntarily made more intense. If the passion is
voluntary only in its cause, it is rather a sign of the great
intensity of the perverse will from which it flows, but which
it does not cause.
5. The evil motions of anger, impurity, rash judgement
which precede all advertence and deliberation of the mind,
cannot of course be sinful, as they are not voluntary. They
become sinful when consent is yielded to them after advertence
to their malice. The question is discussed among theologians,
whether it be sinful, and in what degree, to remain neutral
under an evil motion of concupiscence, neither giving consent
to it nor positively resisting it. If the question is raised
concerning a vehement temptation to impurity, it may reason-
ably be denied that it is ordinarily possible to remain neutral ;
the danger of consenting would be too great. In such a case
there will usually be a grave obligation to resist positively for
fear of being drawn into giving consent. Positive resistance
does not mean direct and physical effort, which would be
worse than useless ; but it means that we must, under tempta-
tion, avert our minds from the evil suggestion and occupy
them with other thoughts. If, however, the question be put,
whether sin is committed by remaining neutral under tempta-
tion to evil, not deliberating about committing it, but simply
neither consenting to it nor rejecting it, the correct answer
would seem to be that a venial but not a mortal sin is thereby
mortally sinful only venial. The struggle against vice is more diffi-
cult for those who are subject to such propensities, but as long as
they are in their right senses with the help of God's grace they can
resist, if only they take the necessary means. The same must be
said of those who have strengthened their passions and weakened
their will by long indulgence in a habit of sin. V. Frins, De Act.
Hum. i, n. 236.
" There is not, and there never has been, a person who labours under
partial delusion only, and is not in other respects insane." C. Mercier,
Criminal Responsibility, 1905, p. 174.
However, on p. 203 the same author writes : " The majority of
insane persons are sane in a considerable proportion of their conduct ;
and when in this part of their conduct they commit offences they
are rightly punishable." Perhaps the explanation of this apparent
contradiction lies in a sentence which immediately follows the last.
It is this: " Since the limits between the sane and the insane areas
of conduct of insane persons are ill defined, no insane person should
be punished with the same severity that would be awarded to a sane
person for the same offence."
1 6 HUMAN ACTS
committed. There is some sin, because we are commanded
to rule the lower appetites and keep them in subjection to
reason, which is not done in the case supposed. But the sin
cannot be mortal, for there is no consent of the will, by which
alone mortal sin can be committed. This is the teaching of
St Thomas and of St Alphonsus. 1
SECTION III
On Fear
1 . Fear is defined to be a perturbation of the mind on account
of some present or future danger.
It is grave or slight in proportion as the danger is serious
or not serious. Absolutely grave fear is such as will seriously
affect an ordinarily constant man, as the fear of death, of
perpetual imprisonment, or of loss of goods ; relatively grave is
such as will seriously affect anyone of timid disposition.
Reverential fear is that which a subject feels lest he should
offend his superior. Ordinarily, divines rank it as slight fear,
but it may become grave if, for example, a very austere father
threaten his daughter with loss of home or with his perpetual
displeasure.
Fear from without is the result of some external danger,
which may arise either from a necessary cause, as, e.g., from
the danger of shipwreck ; or it may be threatening from a free
agent. Fear from within is from an internal cause, as the fear
of death from a disease which has been contracted.
2. The actions which are done out of fear are simply volun-
tary, but they are usually also involuntary under a certain
respect.
There is no question here of actions which are done in fear
or with fear, as when I walk with fear and trembling along a
lonely road by night. We are concerned with the effect which
fear has on human actions done in consequence of fear ; and
unless it deprives the agent of the use of reason, which in rare
cases may happen, the action remains voluntary, because it
is done freely and deliberately to avoid the threatened danger.
In such circumstances, as we saw above, the action is said to
be simply voluntary ; but it is also involuntary under a certain
respect, for, unless the danger threatened, the action would
not be done. An exception must be made with regard to
attrition elicited from fear of hell, which, if it is to be efficacious,
must be simply voluntary and in no respect involuntary, for
1 Theol. Mor. 5, n. 6.
OBSTACLES TO VOLUNTARY ACTION 17
*
otherwise it would not help to justify the sinner in the sacra-
ment of Penance. 1 We can easily see how this is possible
with regard to sin. For other actions done through fear have
some evil or loss annexed to them, on which account they are
involuntary under some respect; while aversion from sin is
wholly good and reasonable, and so there is no reason why
repentance for sin from fear of hell should not be simply
voluntary and in no respect involuntary. 2
3. Inasmuch as bad actions done through fear are simply
voluntary, it would follow that they are imputable to the agent,
so that fear does not excuse him from sin. And this is true
of such actions as are intrinsically bad and against the natural
law. The Church has always considered those to be apostates
who through fear of death or persecution deny their faith,
though less culpable than those who renounce it without
excuse (Can. 2205). ,
However, with regard to positive precepts, grave fear
ordinarily excuses transgressors of them from sin. The
reason is, -because the legislator is not presumed to desire that
his laws should bind when their observance would entail such
grave consequences to his subjects. Divines, relying on what
we read in Holy Scripture, teach this doctrine concerning the
positive law of God, and it will be all the more true of positive
human legislation. 3 But if non-observance of a law or a
command of a superior would cause great damage to the
common good, then the law or command must be obeyed,
even with loss of life ; for private advantage must yield to the
requirements of the common weal. And so a soldier must
stick to his post in war, even at the risk of life.
SECTION IV
On Violence
i. Violence or coercion is the using of greater force than
can be resisted to compel another to perform some action
against his will. In certain connections the person who suffers
violence is said in English law to be under duress.
It follows from the definition that violence is from some-
thing external to the agent ; no one can offer violence to him-
self ; and that the subject resists to the utmost of his power.
1 Trent, sess. 14, c. 4.
2 St Alphonsus, 6, n. 442.
3 St Thomas, 3, q. 40, a. 4, ad 3 ; 1-2, q. 100, a. 8, ad 4; Suarez,
De Leg. 3, c. 30, n. 6; Can. 2205, sec. 2.
I. 2
1 8 HUMAN ACTS
If the resistance is only partial, there is violence only under
a certain respect (secundum quid).
2. The elicited acts of the will cannot be forced by violence,
for in that case the agent would will and not will at the same
time.
3. The other internal faculties, and much more the external
faculties of man, may be subject to violence. If the violence
is absolute, the resulting action is involuntary and not im-
putable to him who suffers violence ; if the resistance is only
partial, the action will be voluntary to a certain extent, and
in the same degree it will be imputable to the agent (Can. 2205,
sec. i ; 2218, sec. 2).
CHAPTER IV
THE MORALITY OF HUMAN ACTS
SECTION I
On the Essence of Morality
i. BY performing good actions a man becomes a good man
morally, and he is a bad man morally if he performs bad
actions. Actions are called good or bad morally with reference
to the norm or rule of human conduct. So that the morality
of an action is its relation to the rule of human conduct. It
will be a morally good action if it be conformed to the rule
of conduct ; otherwise it will be a morally bad action. As men
have differed, and do differ, widely in their views as to the
meaning of human life and as to man's destiny, they naturally
have differed, and do differ, widely in deciding what is the
rule of human conduct. The rule in different systems will be
progress, or the greatest happiness of the greatest number, or
pleasure, or the categorical imperative of the individual reason.
Even among Catholic philosophers and divines there is some
difference of opinion as to what constitutes the fundamental
norm of morality. Practically the different opinions come to
much the same, especially as there is greater agreement among
Catholics as to what are the formal and proximate rules of
morality. The teaching of St Thomas and many others seems
to be that the fundamental norm of morality is rational human
nature as such. Good in general is that which is conformable
to the being whose good it is; and so morally good actions
will be such as are conformable to the rational nature of man
considered in itself and in all its relations. Man's intellect
can know man himself, the existence of God and our relation
to him, our relations to other human beings, and to the world
round about us ; knowing these things, our reason can tell us
what actions are becoming and what unbecoming to such a
nature. Moreover, reason tells us that although we have the
physical liberty to do wrong, we are nevertheless under a
moral obligation to abstain from it. Our most wise, and good,
and provident Creator, who has given us our nature and placed
us in the position which we hold, cannot be indifferent as to
19
20 HUMAN ACTS
the manner in which we conduct ourselves. The still, small
voice of conscience is there to tell us what is right, in the name
of God whose herald it is, to approve of what we do well, to
condemn what we do ill. The fundamental norm of right
conduct, then, is man's moral nature, morally right conduct is
conduct in conformity with man's nature in itself and in all its
relations. This constitutes right order in the moral world,
which God the Creator and provident Ruler of the universe
cannot but will us to observe, and this divine Will or Reason
bidding us to observe right order and prohibiting its viola-
tion is the eternal law of God, the formal objective rule
of morality. Human reason, applied to conduct, or conscience,
is the formal subjective rule which makes known to us and
applies the objective rule. 1
2. The morality of a human act belongs to it inasmuch as
it issues freely from the will with knowledge of its moral
quality. Because it is the free product of the human will, a
human or a moral act makes a man culpable or praiseworthy.
Now the will alone is free, and so morality belongs properly
to the internal act of the will. In a perfect human action,
indeed, the external act must follow, if it is in the agent's
power, in order to the completeness and perfection of the
internal act; otherwise there will be no perfect and efficacious
will. But the external act, which is called free only with
reference to the will from which it proceeds, cannot have any
separate morality of its own, nor of itself can it add to the
morality of the internal act. In a complete human act, there-
fore, consisting of an internal and external action, morality is
formally in the internal act alone. Accidentally, on account
of longer duration, or repetition, or greater intensity which
the external act causes, it may add something to the goodness
or malice of the internal act, but not in and by itself. A man
is good or bad as his will is good or bad.
From this it must not be concluded that an external sin is
the same as an internal sin ; that if a man has committed forni-
cation, it is sufficient to confess the desire and intention to do
so ; the malice of the internal and external acts are the same
substantially, but an internal act is different from an external
act ; and so the sins also differ, for sin is a bad human act.
3 . There is considerable difference of opinion as to whether,
besides the division into good and bad actions, we must also
admit a third class, neither good nor bad, but indifferent. In
the abstract, indifferent actions certainly exist ; to take a walk,
1 V. Frins, De Act. Hum. 2, n. 65.
THE MORALITY OF HUMAN ACTS ai
for example, in itself and in the abstract, is neither a good nor
a bad action. But in the concrete, a man's intention, and the
circumstances in which the action is performed, necessarily
give it a moral quality. The intention must be honest or not,
the circumstances must be such as to make the action con-
formable to right reason or not, and so in the concrete any
particular action must be either right or wrong ; it must be either
good or bad, it cannot be indifferent. An action may of course
be morally good, and yet not supernaturally meritorious, and
so indifferent from a supernatural point of view; and this
perhaps is the meaning of some of those divines who contradict
the above teaching of St Thomas and the common opinion of
the schools. 1
4. An action which in itself is not conformable to right
reason and order is against the law of nature and intrinsically
bad. An action which in itself is not bad, but only bad because
forbidden for good reasons by a lawful authority, as eating
flesh meat on a day of abstinence, is said to be bad because
forbidden; while intrinsically bad actions are forbidden by
God because they are bad and inordinate. However, not all
these intrinsically bad actions are bad in the same degree.
Some are necessarily and always so, because in all circum-
stances they remain inordinate, as hatred of God, our first
beginning and last end. Others in certain circumstances may
become lawful, as taking what belongs to another, which in
certain circumstances may be done without sin. The State for
good reason may grant leave to take another's land for a new
railway ; and a fortiori almighty God, the supreme Lord of all
created things, may, without doing an injury, take the life,
rights, or property of his creatures. Many divines explain
the spoliation of the Egyptians, and the divine toleration of
polygamy in the Old Law, by the aid of this principle.
Finally, some actions, as obscene touches and looks, are
commonly inordinate and sinful; but if there is good reason
for them, and due caution be exercised, they become lawful. 2
SECTION II
The Sources of Morality
We saw in the preceding section that there are various rules
by which we know whether a human action is good or bad.
It will be a good action if it be conformable to right order,
otherwise it will be a bad action. It remains for us to con-
1 St Thomas, 1-3, q. 18, a. 9. 2 Gury, i, n. 26.
22 HUMAN ACTS
sider what elements in an action make it conformable or not
with right order. What have we to attend to in order to know
whether an action is according to right reason or not ?
There are three such elements, of which sometimes one,
sometimes another, sometimes all together, contribute to make
the actions in right order or, on the contrary, inordinate. They
are the object, the end, and the circumstances of the action.
Point I
The Object
1 . By the object is here meant that to which the will primarily
and directly tends ; that which it determines to do looked at in
itself, apart from the circumstances with which the action when
done will be clothed ; or it is the action considered in the abstract.
2. It is obvious that some objects, in the sense above defined,
have an objective morality of their own, and this causes the
will which tends towards them to be either good or bad as the
object is good or bad. To blaspheme God is an action which
no creature of his can will without the greatest inordinateness.
The will to commit murder, or to steal another's property,
is essentially an evil will, because it tends to an evil object.
On the contrary, to love God, to relieve human misery, to
show love, honour, and reverence to one's parents, are good
actions, because these objects are good, and the will that tends
to them is good.
Human actions, then, derive their specific morality from
the object, whenever that object is of itself conformable to
rational human nature or, on the contrary, not conformable
to it. If the object is indifferent, without any objective moral
quality, as walking, the action will derive its morality from the
circumstances in which the action is performed.
Point II
The End
1. By the end is here understood the reason or motive
which induces the agent to act.
The end of all human life is called the last end ; other motives
for action are intermediate ends. An end is primary if it holds
the first place among several, and would be sufficient by itself
to induce action ; otherwise it is secondary.
2. It is obvious that the end or motive which induces the
agent to act holds a very prominent place among the sources
THE MORALITY OF HUMAN ACTS 23
of the morality of an action. For it is the object to which the
will tends, the prospect of gaining which moves the agent to
act ; but, as we saw in the last point, the motion of the will takes
its moral quality from the object ; a will, then, which tends to
a good end will so far be good; a will which tends to a bad
end will be bad. But the morality of an action resides chiefly
in the will, so that a good or bad will, derived from the motive
of an action, must necessarily contribute to the goodness or
badness of that action. It is the end or motive which sets the
will in motion and gives its own moral quality to the action
which follows. One, then, who steals money in order to be
able to commit adultery commits a sin against justice, induced
thereto by a desire to sin against chastity, and as St Thomas,
following Aristotle, says, he is more of an adulterer than a
thief. 1
3. The end which the agent has in view may coincide with
the natural scope of the action, as when a man eats to support
life. The extrinsic end is then said to correspond with the
intrinsic end of the object. Or it may be different, as when
a man eats merely for the sake of pleasure; and a man may be
moved to action by a variety of subordinate ends, as when he
eats to keep up his strength, to be able to work, to obtain the
money wherewith to be able to support his family, and so fulfil
his duty.
4. If the object of the action be good, and the extrinsic end
of the agent be good also, the action will have a twofold merit.
And so there is a twofold merit in giving an alms to relieve
distress for the love of God. On the other hand, a grievously
sinful motive corrupts and makes an otherwise good action
grievously wrong. It turns the agent altogether away from
God, his last end. And so it would be a mortal sin to give
an alms to a poor woman in order to seduce her.
Even a venially sinful motive, if it be the whole or the
primary motive for the action, corrupts the whole act and
makes it venially sinful; for then a bad object is sought by
good means indeed, but the means are infected with the pur-
pose to which they are prostituted. And so one who preaches
merely out of vanity commits a venial sin.
If, however, an end be only venially sinful, and be not the
whole or primary motive of the agent, the resulting action
will be partly good and partly evil. We suppose that the
object is good, a partial motive or motives are also good; in
this case a partial and secondary bad motive, which is only
1 St Thomas, i-a, q. 18, a. 6.
24 HUMAN ACTS
Venially sinful, cannot corrupt the whole action. One who
preaches principally out of obedience, but more willingly
because his vanity is flattered, performs an action which is
substantially good, but which is infected with a slight defect.
5. A good motive gives its own moral quality to an in-
different action and makes it good. And so I do an act of
charity by depriving a man of a knife with which he was
threatening to commit suicide, while the same action done
with a view to making the knife my own would be theft.
There is a controversy among theologians as to whether the
purpose or intention with which an action is performed can
make an action unjust, which, apart from that intention, is
not so.
Would a man, for example, be guilty of an act of injustice
towards his enemy, and bound to make restitution to him, if
he committed a crime, foreseeing and intending that it should
be imputed to his enemy, who would be punished for it ?
Of course he is guilty of a grave sin by giving way to such
an act of hatred, and if by any means he procures the false
accusation of his enemy he is also guilty of injustice by causing
his undeserved punishment. But supposing the false accusa-
tion, though foreseen, was in no way procured by him, but
was brought about by other causes, would his intention make
him guilty of injustice towards his enemy and bound to make
restitution to him ?
Many theologians affirm tha,t it would, 1 but seeing that the
false accusation is indeed occasioned by the crime, but not
caused by it, it would seem that the bad intention of the man
who committed the crime was incapable of supplying the
causal connection between the crime and the false accusation.
The intention alone cannot change the nature of the external
action. But if this be so, he is not the effective cause of the
injury done to his enemy, and he is not bound to make restitu-
tion to him.
A good intention certainly cannot make a bad action good.
It is not lawful to tell a lie even to save another's life, according
to the teaching of Innocent III. Evil must not be done that
good may come of it. This is the teaching of Holy Scripture
and of the Catholic Church, nor have Jesuits any other doctrine
different from that of the Church. Father Dasbach promised
to give anyone two thousand florins who would prove in opejn
court that the Jesuits had ever taught that the end justifies
the means. Count Paul von Hoensbroech undertook to do
1 Lugo, Dejustitia, disp. 8, n. 75.
THE MORALITY OF HUMAN ACTS 25
so, but he failed in his suit when it was tried at Cologne in the
spring of I9O5. 1
6. Here we must touch upon a question which has raised
a good deal of controversy among divines, and which still
divides them. Some, following the great St Augustine, hold
that it is a venial sin to eat and to perform other operations
of our animal nature for the sake of the pleasure which they
give us. Others, on the contrary, hold that the sensible
pleasure which accompanies the satisfaction of our animal
appetites is good, inasmuch as it is natural and intended by
the Author of nature, and so to perform actions which are not
wrong in themselves from the motive of pleasure cannot be
sinful. If it were not for the sake of the pleasure afforded
by eating and by other animal functions many men would
abstain from them altogether through disgust. The imperious
stimulus of our fleshly appetites and their satisfaction is
required for the preservation and increase of the human race.
These satisfactions of our animal nature must indeed be ruled
and moderated by right reason, the norm of human conduct.
If they are thus moderated, they are conformable to man's
nature, they are in right order and morally good. This seems
to be the teaching of St Thomas ; 2 it is the commoner opinion
among modern theologians, nor is it involved in the condemna-
tion of the eighth and ninth propositions condemned by
Innocent XI on March 2,
Point III
On the Circumstances of an Action
i . By the circumstances of an action we understand certain
accidental conditions, which, as it were, surround (circumstant)
and complete the substance of the action. There are seven
enumerated in the doggerel line
Who, what, where, when, by what means, why, and how.
The circumstance indicated by who does not signify the
agent merely as the author of the action ; the action must neces-
sarily be done by someone ; but it signifies some special quality
in him or condition which affects the morality of the action.
Thus if a son strike his father, the circumstance of the parental
relation changes the morality of the act, and makes it a sin
1 Civilta Cattolica, Oct. 7, 1905, p. 3.
2 Oont. Gent. 3, c. 9, n. i ; Summa, 2-2, q. 141, a. i, ad i.
3 V. Frins, De Act. Hum. 2, n. 505.
a6 HUMAN ACTS
not only against justice, but also against the fourth command-
ment or the virtue of piety. If a thief steals a consecrated
chalice, the sacredness of the object makes the sin a sacrilegious
theft, a circumstance indicated by what. And so of the rest.
It is obvious that circumstances of this kind are sources of
morality, for they make the action conformable or not to the
norm of morality. It is against right reason to strike anyone
unjustly, but it is still more inordinate to strike a parent. At
the proper time it is a good action to play in the proper place
and with good playmates; if any of these circumstances be
wanting, the action becomes so far bad.
2. Some circumstances affecting the intensity, or quantity,
or duration of an action add to or lessen its malice, but they
do not change its moral species ; such circumstances are called
aggravating circumstances. Although they do not change the
moral species of the act, they sometimes make a venial sin
mortal, or vice versa, as the quantity in theft; they are then
said to change the theological species of the action. If the
circumstances add to the action a special and distinct malice
of their own, they change its moral species, as the sacred object
or place in a sacrilegious theft. Such a theft is not only
against justice, but also against the virtue of religion.
3. In order that an action may be altogether and simply
good, the object, the end, and the circumstances must all be
good; for good indicates completeness and perfection; there
.is evil in any defect. If all the sources of morality are evil,
the action may have a triple malice; as when a thief steals
Church plate in order to be able to indulge his vicious pro-
pensities. If only one source or circumstance of an action
be mortally sinful, the perpetration of it turns the evil-doer
away from God and makes the action wholly bad. An acci-
dental and secondary circumstance, when only venially sinful,
does not corrupt the whole action; it only lessens its merit.
Thus it is a grievous sacrilege to receive Holy Communion in
a state of mortal sin; a state of venial sin only makes the
Communion less fruitful.
SECTION III
On Merit
i. It follows from what has been said in the preceding
section, that an action will be morally good if the object, end,
and circumstances are good. The object, end, and circum-
stances will be good if they are conformable to man's rational
THE MORALITY OF HUMAN ACTS 27
nature and to the eternal law of God. An opinion was held
by some theologians that besides these conditions it is necessary
to refer, actually or at least virtually, all our actions to God;
otherwise they will at least be venially sinful. These theo-
logians rested their opinion on certain texts of Holy Scripture
and on passages from some of the Fathers, especially St
Augustine. The principal Scripture text is from St Paul's
First Epistle to the Corinthians, x 31: " Therefore whether
you eat, or drink, or whatsoever else you do; do all to the
glory of God." There are various interpretations of the
passage, but the meaning seems plain from the context.
St Paul is teaching the Corinthians the duty of avoiding
scandal to Jews, Gentiles, and to the Church of God. They
must so order their actions, even those that are indifferent
in themselves, such as eating certain kinds of food, as not to
be a cause of offence to others. Then will their actions all
tend to the honour and glory of God, then will they do all
things in charity (i Cor. xv 14). There is obviously no word
here which can be legitimately construed into a command to
direct all our actions to God by an actual or virtual intention
of the will. Such a merely internal act would not tend to
edify others, and in the text quoted this is what St Paul is
urging the Corinthians to do. Other passages which are
quoted in support of the opinion are similarly capable of being
explained in a sense which affords the opinion no support.
It is indeed a truth, which is insisted on by other theologians,
that if an action be honest and good and performed because
it is conformable to right order, it is thereby implicitly directed
to God, who wills the observance of right order, and who is
himself the end to which rightly ordered action tends. In
this sense it is true that every good action must be referred to
God ; but every good action is thus referred to him by the very
fact that the object, the end, and the circumstances are good. 1
2. Something else is required to make a naturally good
action supernaturally meritorious. The question of merit
belongs to the dogmatic treatise on grace; here it will be
sufficient to give something about the subject in outline, in
order to round off our treatment of human acts.
Merit in general is a certain value in an action which gives
the agent the right to be rewarded by him in whose behalf
the action is performed. Merit, then, with God will be a right
to be rewarded for one's actions by God. Theologians dis-
tinguish between condign and congruous merit. The former
1 V. Frins, De Act. Hum. 2, n. 290.
28 HUMANACTS
implies that there is some sort of equality between the value
of the action and the reward, so that the reward is due to the
agent in justice. If there is not this equality and title in
justice, the merit will be only congruous. We can merit
condignly an increase of grace, life eternal, and an increase of
glory, as the Council of Trent defined. 1 Efficacious graces, by
which we receive, preserve, and increase sanctifying grace, and
the gift of final perseverance, are the objects of congruous merit.
3. In order that an action may be condignly meritorious,
two conditions are required on the part of the agent, two on
the part of the action, and one on the part of God.
The agent must be still on his probation in this present life ;
there is no meriting when man's day is done. He must also
be in the state of grace and friendship with God ; the actions
of one who is out of grace and who is a rebel and an enemy
of God cannot deserve any reward from him.
The action itself must be morally good, not bad, as is
obvious; and it must be supernatural, elicited by means of
grace and from a motive which is rooted in faith. Otherwise
it will be merely of the natural order, deserving indeed of a
natural reward, but having no proportion to the supernatural
end to which we know by faith that man is destined by God.
On the part of God there must be a promise made by him
to grant such a reward to such an action. For otherwise,
after doing all that we can, we must acknowledge that we are
useless servants, who cannot claim anything as due to them
in justice from God, their Creator and Lord. He has every
claim to our service without our having a strict right to any
reward in return. According to the very probable teaching
of St Thomas, 2 all the deliberate actions of one who is in a
state of grace are either meritorious or sinful. In order to
be in a state of grace, such a one must have fulfilled all the
duties which bind him under pain of grievous sin, and among *
these is the obligation of eliciting at the proper times an act
of love of God. By such an act the just man refers himself
and all he does to God, and thus his good actions are elicited
by the help of grace and tend to man's supernatural end, the
beatific vision of God. In any case, if we are careful fre-
quently to renew our intention of pleasing God, and with his
grace remain free from mortal sin, we may rest in the assured
hope that all our good actions are meritorious of life eternal.
1 Trent, sess. 6, can. 32.
2 De Malo, q. 2, a. 5, obj. 10; in lib. 2, dist. 40, a. 5, ad 6.
BOOK II
ON CONSCIENCE
CHAPTER I
THE NOTION OF CONSCIENCE
i. THE voice of conscience is the authoritative guide of man's
moral conduct. Not that the individual conscience is inde-
pendent of all authority ; if the individual conscience is right,
it proclaims the duty of submitting to all properly constituted
authority, and especially to the supreme and absolute authority
of God. It is, as theologians are fond of saying, the herald
or ambassador of God to each individual, making known to
him and applying the eternal law of God to the conduct of life.
Although the term is also used with other meanings, here
conscience signifies a dictate of the practical reason deciding
that a particular action is right or wrong. The process by
which we arrive at this judgement of the practical reason may
be put in the form of a syllogism. The major premise will
be some general law of conduct, the minor will be its applica-
tion to the particular case, the conclusion will be the judge-
ment, which is nothing else but conscience. Thus when a
precept has been given by one who is in lawful possession of
authority, the dictate of conscience is implicitly arrived at
somewhat as follows : I must obey all who command me with
lawful authority. A. B. commands me with lawful authority.
Therefore I must obey him is the conclusion and the dictate
of conscience.
2. Conscience is said to be certain, dubious, or probable, as
the motive on which it is grounded is morally certain, doubtful,
or only probable.
A right conscience is in accordance with the eternal law of
morality; an erroneous conscience gives a false instead of a
true judgement. If the mistake could and ought to have been
avoided by the agent who has a false conscience, the conclu-
sion is vincibly erroneous ; otherwise it is invincibly erroneous.
A strict conscience is one which is apt to decide that there
is an obligation when none exists, or a greater obligation than
there really is; a lax conscience, on the contrary, is apt to
29
30 ON CONSCIENCE
deny an existing obligation or to make it less than it is in fact ;
a scrupulous conscience without sufficient reason apprehends
sin where there is none.
A dictate of conscience which precedes the action, judging
it to be right or wrong, is said to be antecedent; that which
follows an action, approving it as rightly done, or condemning
it as wrong and disturbing the inward peace of the soul, is
consequent.
CHAPTER II
ON THE CERTAIN CONSCIENCE
i . CERTAINTY in general is a firm assent of the mind to some-
thing known, without the fear of mistake. In mathematics
and in other branches of exact science we can often attain
absolute certainty, which rests on the evident truth of the
principles which are employed to arrive at it. For anyone
who is capable of following the demonstration there can be
no manner of doubt that the angles of a triangle are together
equal to two right angles. In the science of morality we have
frequently to be content with a lower degree of certainty than
this; there is often some obscurity about the principles to be
applied, and human acts are not the matter of necessary and
unvarying law. We have to be content with what is called
moral certainty; but this again is of various degrees. I am
morally certain of the existence of Berlin, though I never saw
the city. Any person who doubted of its existence would be
thought to be insane. The grounds on which the judgement
that Berlin exists are based are so many and so strong that
they leave no room for prudent doubt in the matter. In such
cases we have perfect moral certainty. In other cases I may
be conscious that mistake is possible but not probable, as
when a man has been condemned on evidence which has
satisfied a jury of intelligent men. In such cases if there can
be no prudent doubt about the justice of the verdict I have
moral certainty of an imperfect but real kind. If I could not
safely rely in guiding my conduct on such a degree of certainty,
I should have to abstain from action altogether. Ordinarily
greater certainty cannot be obtained in human affairs.
2. In order to act lawfully and rightly, I must have at least
moral certainty of the imperfect kind that the proposed action
is honest and right. This degree of certainty will be sufficient,
for ordinarily no greater can be had, as we have just seen.
It is also required for right action ; for if I am not at least to
this extent morally certain that my action is right, I am con-
scious that it may (be wrong. In |this case I am bound to
pause, and satisfy myself that it is right before acting ; for if
I do not do so my will is ready to embrace what may be wrong
33 ON CONSCIENCE
I am ready to do the action whether it is in right order or not.
But such a will is malicious ; it is not firmly set on doing what
is right; and sin is thereby committed.
A subjectively certain conscience then, which tells me
without prudent doubt that the action is right, is required
for lawful action; " All that is not of faith is sin," as St Paul
says. 1 It will be sufficient if we have imperfect moral certainty,
as we have seen. 2
3. If I have this imperfect moral certainty that my action
is right, I am justified in acting, and if with such certainty
my conscience tells me that I am bound to act, I must do so,
even though my conscience be erroneous. For my action is
morally good if my will be good. My will is good when it
tends to a good object as represented by my intellect,
not as it is in itself. But if my will follows my conscience
and determines on what it prescribes, my will then tends to
a good object as represented by my intellect and is a good will.
So that even though my conscience be erroneous, I am justified
in following it, and I am bound to follow it when it prescribes
any action to be performed. 3
This is true whenever I have a certain conscience that is,
when I have no doubt or suspicion about the honesty of my
action, even though my conscience be erroneous. If I were
the wilful cause of my conscience being in error by not taking
means to inform it correctly, then any objectively wrong action
that I perform is voluntary in the cause, and so far imputable
to me, but here and now I must follow my conscience.
I am said to be bound by my conscience because it compels
me to follow it under pain of doing wrong, committing sin,
and being exposed to the pangs of remorse. It binds me also
in the name of God, whose will it makes known to me. It
speaks, therefore, with the authority of God, it sternly bids
me follow his behests, and it reproves me with the authority
of a superior if I neglect to follow its promptings. As repre-
senting the will of God its authority is greater, as St Thomas
teaches, 4 than that of any merely earthly superior.
4. The question as to whether in any particular case a
person acted with an erroneous conscience is a question of
fact, which only he and God can decide. Still, following
approved theologians, we may make use of certain presump-
tions drawn from the nature of things and from experience.
It may be admitted that ignorant and dull people may have
1 Rom. xiv 23. 2 St Thomas, 2-2, q. 70, a. 2.
3 St Thomas, 1-2, q. 19, a. 5. 4 De Verit., q. 17, a. 5.
ON THE CERTAIN CONSCIENCE 33
an invincibly erroneous conscience concerning the malice of
merely internal sins committed in thought only ; but we should
except efficacious desires to do what is known to be wrong.
A person can scarcely know that the external action is morally
wrong and be ignorant of the malice of an effective desire to
commit such an action.
Again, the first principles of morality, which are certain
general axioms of conduct, such as, Do to others as you would
be done by, can scarcely fail to be known by anyone who has
the use of reason. Even the secondary principles of the
moral law, or the precepts of the Decalogue, are usually known
by those who have attained the use of reason among civilized
men; if in any case there is ignorance of them, it is vincible
ignorance, and so more or less culpable. Theologians readily
admit the possibility of an invincibly erroneous conscience
concerning the application of the general principles of morality
to concrete cases. The theological disputes which they
chronicle are proof of the fact. 1
1 St Thomas, 1-2, q. 94, aa. 4, 6.
i.
CHAPTER III
ON A DOUBTFUL CONSCIENCE
i. WHEN we have some knowledge of a matter which does
not amount to a certainty, various states of mind may be
distinguished with respect to the mind's inclination to form
a judgement about the matter in question. If no reasons are
known for either affirming or denying a proposition, or if there
are as weighty reasons for one as for the other, the mind
suspends judgement, and is said to be in doubt. Doubt, then,
is the suspending of judgement about a matter apprehended
by the mind. A doubtful conscience, therefore, will be a
suspension of judgement about the lawfulness of some
action.
If some slight reason draws the mind in one direction, we
have then a suspicion about the matter. If there be a good
solid reason or reasons for forming a judgement in a particular
sense though there is not sufficient ground for certainty, and
it is felt that the opposite may be true, the mind then forms
an opinion on the matter. 1
Theologians distinguish a negative from a positive doubt.
There is negative doubt when the mind suspends judgement
for want of reasons on one side or on the other ; if there is an
apparent equality of reasons on either side, the doubt is
positive. In this chapter we confine our attention to negative
doubt, the sense in which the term doubt is usually understood
in theology. A speculative doubt has reference to some
question in the abstract apart from present action, as when
I doubt whether it is allowed to fish on Sundays, though I
have no intention of actually fishing: a practical doubt has
reference to the lawfulness of an action which there is question
of performing here and now.
A doubt about law has reference to the law's existence or
its interpretation; a doubt about fact has reference to fact.
2. It is not lawful to perform an action with a practically
doubtful conscience as to whether the action is right or wrong.
The reason is obvious; for, as we saw in the last chapter, we
must have a certain conscience that the action is right before
1 St Thomas, 2-2, q. 2, a. i.
34
ON A DOUBTFUL CONSCIENCE 35
performing it, otherwise sin is committed, and one who has
a doubtful conscience has not a certain conscience.
The sin which is committed by one who acts with a practi-
cally doubtful conscience as to whether the action is right takes
its species and gravity from the doubtful conscience. If I
eat meat with a practical doubt as to whether it is not forbidden
on that day by the Church, I commit a sin of the same kind
and malice as if I ate meat knowingly on a day of abstinence.
The reason is obvious from what was said about a certain
conscience. Trie species of a sin and its malice depend upon
the mind and will of the agent, and when one acts with a
doubtful conscience the will is prepared to commit a sin of
the kind apprehended, and by that very act it commits the sin.
3. As long as the conscience is in a state of practical doubt,
one may abstain from action altogether, or do what in any
case would be licit. There is no danger of sin if, while doubt-
ing whether it is allowed to eat meat, one abstains from food
altogether, or eats only what is allowed on days of abstinence.
The axiom In dubio pars tutior est sequenda is to be taken
in this sense. An effort may also be made to resolve the
doubt by making inquiries of those who know, by consulting
authorities, or by making use of certain principles of conduct
which are approved by law and right reason. In this manner
a certain conscience may frequently be formed.
4. There are various principles or axioms suitable for the
purpose of forming one's conscience when in doubt. They
are for the most part taken from canon law, but they are also
used in questions belonging to the forum of conscience.
In dubio melior est conditio possidentis. Possession is properly
a physical fact, and consists in the corporal detention of a
thing. In a wider sense rights are objects of possession, as
a right of way, or the right to one's liberty; so that if one's
liberty has hitherto been unrestricted, it is said to be in posses-
sion. The very fact of possession gives a right to continue
in possession unless there is an adverse and stronger claim.
There is also in the possessor a presumption of title to possess,
for all men are jealous of their rights, and usually do not
allow their property or rights to be held by others as owners.
If, then, I am in possession of some object or right, and a doubt
supervenes as to whether I am entitled to possession in the
case or not, the question may be solved in the forum of con-
science as it would be in a court of law, by applying the maxim
In dubio melior est conditio possidentis^
1 Cf. Irish Eccles. Record, Sept. 1899.
36 ON CONSCIENCE
If, then, a doubt arises as to whether I have said my breviary,
I must say it, for the law is in possession; if on the contrary
a doubt comes into my mind as to whether I have taken food
after midnight, I may go to Holy Communion, because my
right to receive is in possession.
5. In dubio standum est pro eo pro quo stat praesumptio. A
presumption is a probable conjecture about an uncertain event.
The conjecture is such as would be formed in the circum-
stances by a man of ordinarily sound judgement and prudence.
This is called a praesumptio hominis to distinguish it from a
praesumptio juris, which the law itself sanctions in certain
circumstances. Thus, according to the old canon law, if the
parents of a boy and girl promised them in marriage and they
did not express dissent, there was a, praesumptio juris that they
gave their consent, and they were reputed betrothed to each
other. 1 This praesumptio juris admits, indeed, of proof to the
contrary ; in cases where proof to the contrary is not admitted,
there is praesumptio juris et dejure, as it is called.
When in doubt, I can frequently form my conscience by
the aid of this axiom. If, for example, I am in the habit of
saying my little hours after breakfast, and some evening a
doubt occurs to me whether I said them on that day, I need
not say them then, the presumption being that I said them
in the morning as usual, and In dubio standum est pro eo pro
quo stat praesumptio.
6. In dubio factum non praesumitur sed probari debet. Simi-
larly, Nemo praesumitur mains donee probetur. These axioms
are understood of some principal fact, the fact of baptism, for
example, or the commission of a crime, which obviously should
not be presumed. If on the contrary the principal fact is
certain, and a doubt arises as to some accessory circumstance,
then other axioms should be used to guide the conduct: as,
In dubio omne factum praesumitur recte factum; or, In dubio
praesumitur factum quod de jure faciendum erat; or, In dubio
standum est pro valore actus. So that if I am certain that I
baptized a child, but begin to doubt whether I anointed the
head with chrism, according to the ritual, I am not bound to
supply the ceremony afterwards.
1 Cap. un., de despon. impub. in Sexto.
CHAPTER IV
ON THE PROBABLE CONSCIENCE
i. A SUBJECTIVELY certain conscience that the proposed action
is lawful is required before performing any action, as we have
already seen. A great difficulty a difficulty which has to be
faced by all moralists arises from this principle in consequence
of the uncertainty as to whether many actions in the concrete
are lawful. One need not consult the works of moralists to
find out what difference of opinion there is among experts on
many practical questions of morals; It will be sufficient to
consult one's own experience. In the conflict of rights and
duties, and in the obscurity which exists as to the application
of moral principles to concrete cases, we are frequently at a
loss as to what course duty prescribes. The cases which are
constantly submitted to the decision of courts of law, but
which also belong to morality, illustrate the familiar truth that
opinion and not certainty is very often alone attainable in the
field of conduct. But if this be the case, what is a conscientious
man to do ? He finds himself in a difficulty ; what the right
thing to do under the circumstances may be is not clear. A
young man has promised to marry a girl somewhat his inferior
in social position ; they are both satisfied that the union would
be a happy one for both, but the young man's parents will not
hear of the thing, and strictly forbid him to see the girl again.
Must he obey his parents, or may he follow his inclinations
and keep his promise ? He consults those whose knowledge
and judgement he respects, and they give him contrary
decisions. He goes to recognized authorities on morals, and
finds the same difference of opinion.
This example is but a type of innumerable questions which
constantly arise in everyday life. Is it possible to lay down
any universal principle for the solution of such doubtful cases,
so as to be able to act with a certain conscience ?
Catholic theologians answer this question in the affirmative,
but they are not agreed as to what the principle is. A prob-
abiliorist would tell the young man that he must obey his
parents and break off the engagement unless the opinion that
he may marry the girl in spite of the prohibition is distinctly
37
38 ON CONSCIENCE
more probable than the opposite. An equiprobabilist would
say that he may marry the girl if the weight of opinion is fairly
equal on either side. A probabilist would maintain that he
may marry her if there is a solidly probable opinion which
favours that course. The terms are technical, and their
meaning should be carefully studied.
An opinion, as we have already gathered from St Thomas,
is an adhesion of the mind to one proposition, but with a
consciousness that the opposite may be true.
A probable opinion is one which rests on good and solid
grounds, such as would incline a man of prudence and judge-
ment to embrace it. If the intrinsic reasons of the opinion are
the grounds for embracing it, we have an intrinsic probability ;
if authority is the ground, we have an extrinsic probability.
A more probable opinion is one which rests on weightier
reasons than the opposite, but which leaves the opposite still
probable.
A very probable opinion rests on such solid grounds that
the opposite is not considered solidly probable.
A morally certain opinion excludes even slight probability
in the opposite ; it is an adhesion of the mind to a truth without
any fear of mistake.
2. In this difficult question, the Catholic Church so far has
been content to condemn extreme views, and allows her
children to follow any of the moderate systems mentioned
above. Alexander VIII 1 condemned rigorism, which required
direct moral certainty in all cases about the lawfulness of an
action, and denied that it is ever lawful to follow' an opinion
which is very probable among several. Laxism was con-
demned by Innocent XI, since it taught that one might lawfully
act on a slight probability. 2 The systems which are known
as Probabiliorism, Equiprobabilism, and Probabilism all have
their adherents ; the Catholic moralist is free to follow whichever
he wishes.
To us it seems that probabilism is the true system, and if it
be rightly understood, as it is taught by its moderate supporters,
and not as it is misinterpreted by its opponents, we are con-
vinced that it will recommend itself to practical common sense.
Its maxim may be formulated thus: When there is only
question of committing sin or not, it is lawful to follow a
solidly probable opinion, even though the opposite may be
more probable.
1 Prop. 3, condemned December 7, 1690.
2 Prop. 3, condemned March z, 1679.
ON THE PROBABLE CONSCIENCE 39
The wording of the formula should be carefully weighed.
The words " when there is only question of committing sin
or not " limit the application of the principle to cases where
the only question is whether by following such a course sin
will be committed because a certain law, human or divine, will
be broken. Probabilism, then, cannot be applied to cases
where the validity of an act is in question, where some end
must be obtained, or where there is question of the certain
right of some other person which must be respected. In all
these cases we are bound to safeguard the end by taking means
that are sure and not merely probable. These are not so
many exceptions to the use of probabilism; there is a certain
obligation to use secure means to obtain the end in view in
such cases, and so there can be no question as to whether
probabilism is applicable or not. This will explain why
Innocent XI condemned a proposition which asserted that it
is not unlawful for a minister of the sacraments to follow a
probable opinion about their validity when administering
them; and another, which taught that a judge might use
probabilism in giving sentence in a court of law ; and a third,
which excused an infidel who followed a probable opinion and
remained in infidelity. 1 In all these cases there is not merely
question of sin, but the certain rights of others are at stake,
or there is question of an end which cannot lawfully be exposed
to risk.
Again, the words " it is lawful to follow a solidly probable
opinion " should be noted. It is not a question as to what
is more perfect, what the noble and generous thing to do may
be. The rule merely asserts that there is no obligation under
pain of sin to follow the more perfect course, if in the case
there be one.
Finally, the words are added " even though the opposite
may be more probable." For the greater probability of the
other view does not make it certain, nor is the supposed greater
probability a sure guarantee that the more probable view is
the more true. It very frequently happens that an opinion
which is considered more probable at one time is thought less
probable or altogether improbable at another. Moreover,
degrees of probability are very difficult to determine. What
seems more probable to one theologian seems less so to
another, or even to the same at a different time. And even if
it be granted that one opinion is certainly and absolutely more
probable, the opposite may for all that remain solidly prob-
1 Decree March a, 1679, props. I, a, 4
40 ON CONSCIENCE
able. With these provisos the proof of the thesis is not very
difficult.
3. Whenever there is a solidly probable opinion that a
particular action is lawful, there is no certain law forbidding
one to perform it. But it is lawful to do what no certain law
forbids. Therefore when there is only question of committing
sin or not, it is lawful to follow a solidly probable opinion even
though the opposite may be more probable.
The major premise of this syllogism is obvious. No opinion
can be probable which has a certain law against it. The
certain law imposes a certain obligation. On the other hand,
if an opinion is probable and acknowledged as such by five
or six experts, good, prudent, and learned men, it is impossible
that there should be a law contrary to the probable opinion.
Or if there is such a law, the law cannot be sufficiently promul-
gated, or else it would be known to the experts. But a law
which is not sufficiently promulgated does not bind ; ignorance
excuses from its transgression. The minor premise, too, is
clear. We are at liberty to do what no certain law prohibits.
If indeed I doubt whether an action is forbidden, I am bound
to inquire and satisfy my conscience on the point. But when-
ever there is a probable opinion, this inquiry has been already
made by experts, and with the result that no law forbidding
the action can be discovered, otherwise the opinion will not
be probable. The conclusion then is certain.
Therefore in cases where there is a probable opinion, or a
positively doubtful conscience, I may arrive at a certain con-
science required for lawful action by reasoning implicitly
somewhat as follows : The opinion is probable that this action
which I am contemplating is lawful for example, marrying
according to my promise a good and suitable person in spite
of the prohibition of my parents which indeed does not seem
to be reasonable. But if this is so, there is no law forbidding
me to do it ; I violate no obligation in marrying her. Therefore
I may marry her.
4. The proof of probabilism from what we must call at
least the toleration of the Church for some centuries will
perhaps appeal still more strongly to Catholic minds.
The guardianship of faith and morals has been committed
to the Church by her divine Founder. He has promised that
she shall not fail in the task committed to her even to the end
of time. But if a false doctrine is widely held and publicly
taught for some centuries in the Church, and she does not
condemn it, does not protest against it, the promise of Christ
ON THE PROBABLE CONSCIENCE 41
fails to be effective, which is impossible. So that probabilism,
which has been widely held and publicly taught for some
centuries as a theory of morals without being condemned by
the Church, cannot be a false system. 1 A third argument
may be drawn from the approbation of the works of St Alphon-
sus Liguori by the Holy See. The decree of May 18, 1803, on
the revision and approbation of the works of St Alphonsus
with a view to his beatification, gives a list of his works and
expressly states that after careful examination nothing repre-
hensible was found in them. Among the works mentioned is
a dissertation on the moderate use of a probable opinion when
it conflicts with a more probable opinion on the other side,
published in 1755. In this dissertation St Alphonsus clearly
and ably defends and proves probabilism; he never withdrew
or corrected this dissertation, though to save his Congregation
and the doctrine he afterwards modified the statement of his
views. He followed probabilism in his choice of opinions
while writing his great work on moral theology which sub-
sequently, though he admitted corrections in details, remained
substantially the same.
5. It has been already pointed out that, although we may
lawfully adopt and follow a probable opinion, there is no
obligation of doing so, and it will frequently be more perfect
to follow an opposite opinion. It is not intended to propose
probabilism as the ideal of Christian conduct ; we go to ascetical
writers and elsewhere for that. 2 Probabilism is especially
an instrument of moral theology, to be wisely and prudently
used by the confessor in the confessional, as the doctor uses
his medicines in the sick room.
6. Theologians warn us that only experts can judge of the
intrinsic probability of an opinion. Others must be content
to be able to discover extrinsic probable opinions. They can
do this by consulting approved authors. If they find that an
opinion is held as probable by five or six authors of repute,
and it has not become obsolete by new legislation, by decrees
of the Holy See, or by the progress of theological opinion, they
may act upon it as solidly probable. The Sacred Penitentiary,
July 5, 1831, declared that a professor of theology or a con-
fessor might follow in practice the opinions of St Alphonsus.
In thus adopting extrinsically probable opinions with regard
to conduct, the priest or the layman only does what anyone
1 St Alphonsus, Dissertation, anno 1755, n. 10.
2 Cf. -Rodriguez, On the Practice of Christian and Religious Per-
fection, i, c. 8.
43 ON CONSCIENCE
not skilled in law would do in a difficult legal case he would
consult an expert whom he could trust.
7. A limitation to the use of probabilism is mentioned by
theologians. When one has decided on any course of conduct,
he must loyally adhere to the consequences which the decision
involves. He must not use a probable opinion to gain an
advantage, and then in the same matter adopt the contrary
opinion in order to shake off a burden. And so when a
probable opinion has been adopted in favour of the validity
of a will in my behalf, I cannot also adopt a contrary opinion
that the will is invalid and refuse to pay the legacies.
CHAPTER V
ON THE SCRUPULOUS CONSCIENCE
i . A SCRUPLE is a groundless fear that there is sin where there
is none. Hence a scrupulous conscience (the term is ordinarily
used of the habit, not of the single act) is one which from
some frivolous reason judges that a harmless action is sinful.
A person, moreover, is not said to be scrupulous because of
a scrupulous conscience in a single instance ; the term is used
of one who, either in some matter or in all his actions, is apt
to be disturbed with unfounded scruples.
2. An upright, straightforward, and well-balanced con-
science is what it is desirable to have, and so a scrupulous
conscience is in itself a bad habit. A scrupulous conscience
may indeed be useful for a time to purify the conscience, and
to make it more delicate and sensitive to even the appearance
of evil; it is sometimes permitted by God for this and other
reasons. But if it continues for a long time it causes great
trouble of mind, injures the health of body and soul, and
sometimes drives its poor victim to desperation, so that he
gives up all attempt to be good, or even loses his senses.
3. The confessor, then, should know how to recognize a
scrupulous person, what the causes of scruples are, and what
are the suitable remedies in particular cases.
The prudent confessor will not at once believe a penitent to
be scrupulous merely because he says that he is. Some people
who are anything but pious think that it is a fine trait of
character to be scrupulous, or they honestly think that they are
scrupulous for want of self-knowledge, and tell the confessor so.
He would obviously make a great mistake if he applied the
rules for scruples to such cases. Nor can the confessor safely
conclude that a penitent is scrupulous because he mentions
in confession minute faults which common penitents hardly
trouble themselves about. He may have before him a soul
of great purity of conscience and great sanctity, who is in no
sense scrupulous. Until he has heard a penitent's confession
more than once the confessor will usually suspend his judge-
ment. When the penitent keeps confessing things which are
not sinful, when he says that he is troubled with doubts and
43
44 ON CONSCIENCE
anxieties about his actions, when he is not satisfied with his
confessions but keeps coming back, or running from one con-
fessor to another; when he will not follow the advice the
confessor gives him, but remains obstinately attached to his
own will, the confessor may usually conclude that his penitent
is really scrupulous.
4. If he can find out how the scruples arose, the confessor
will sometimes be able to apply a suitable remedy at once.
They may arise from a variety of causes : from reading ascetical
or theological books which are too rigorous or which are not
suited to the person's state of conscience; from associating
with scrupulous people and contracting their malady; from
a naturally weak judgement or from bad health; from im-
moderate and indiscreet fervour and spiritual pride ; from the
temptation of the devil, who wishes to ruin his victim, and
from the permission of God, who for his own wise ends
permits the evil for a time.
5. The confessor will then seek to apply a proper remedy.
He may ask the scrupulous penitent whether he is prepared
to follow his advice and direction. If the penitent will not
do this, but goes from one confessor to another, the confessor
will be able to do no good with him, and had better tell him
to find someone whose directions he will follow. With one
who trusts him and tries to follow his advice, the confessor
should be kind and patient; he should give short, clear rules
to the penitent, without going into further explanations; he
should tell him to despise his scruples and to go against them,
boldly to do what he groundlessly imagines to be sinful; as
of course he is justified in doing, for he knows that his fear
of sin in the matter is an idle scruple. The confessor should
tell him not to mention his scruples in confession, and when
great harm seems to threaten the penitent from his scruples
he may tell him not to say anything about them, even if on
occasions he has really committed sins; for scruples may be
a valid reason for not making a full confession. The confessor
will exhort him to keep body and soul fully occupied in
interesting work and never to be idle; an idle brain is the
devil's workshop.
Scruples commonly have reference either to past confessions,
suggesting that they were not properly made, and were bad,
or to temptations against some virtue, as faith or purity; or
to one's actions in general, insinuating that they are sinful
because not done with a proper motive, or for some other
reason. With regard to the first class, the confessor will ask
ON THE SCRUPULOUS CONSCIENCE 45
the penitent whether he is certain that he left out of his con-
fession some grave matter, or that it was sacrilegious. Unless
he can say that he is certain, he will tell him not to think of
the past, to leave it with our good God, but to direct his
thoughts to the present and future. Even if he says that he
is certain that something serious was left out, or that he had
not proper sorrow for his sins, the confessor after once or
twice hearing him will forbid him to mention the past again.
One tempted against faith, purity, charity, or any other
virtue, should be told that temptation is not sin, that sin is in
the free consent of the will to evil, and that the best way to
conquer such temptations is to despise them, to think as
little as possible about them, and not to mention them in
confession.
The confessor should tell a penitent who through scruples
thinks he commits sin in every action to act boldly and fear-
lessly, that he may do whatever is not obviously forbidden,
and that it is impossible for one who wishes to serve God to
commit sin, especially grave sin, without being well aware
of it. 1
1 Reuter, Neo-Confessarius, n. 262.
BOOK III
ON LAW
CHAPTER I
THE NATURE OF LAW
i. A LAW in general is a rule of conduct, but the term needs
to be defined more exactly in order to mark it off from precepts
and counsels.
A law, then, in the strict sense of the word, is, according to
St Thomas, an ordinance of the practical reason for the common
good, promulgated by him who has care of a society. 1
It is said to be an ordinance of the practical reason, for a law
orders human actions with a view to a certain end, but to
order and select proper means toward an end belongs to the
reason; and since the ordering in question has reference to
practice and is imposed by authority, it is attributed to the
practical reason. Law, then, begets an obligation in the
subject, and in this differs from a counsel.
For the common good indicates the end of all good laws.
By him who has care suggests the source of law which can
only be one who has authority over the whole community.
Regulations made by subordinate authorities are called in
English by-laws, in ecclesiastical language, statutes.
Of the society. These words imply that the subject of law is
not a single person or a family; a law is made for a community
more or less numerous.
Promulgated. Promulgation is the publication of the law
by legitimate authority with a view to imposing an obligation.
Some sort of promulgation is required in order that subjects
may know of the existence of the law and the time when it
begins to bind. In English legislation the time when a law
will begin to take effect is often set down in the law itself;
otherwise it begins to oblige when it receives the royal assent,
by which act it is also promulgated.
There used to be a controversy as to what sort of promulga-
tion is necessary in order that ecclesiastical laws may be
1 St Thomas, 1-2, q. 90, a. 4.
47
48 ON LAW
binding. Many canonists maintained that in this matter
canon law followed the civil law, which required that a new
ordinance should be promulgated in the different provinces
of the Empire, and should begin to bind after a period of two
months. In recent times the opinion has become prevalent
that authoritative publication in Rome is, by the very fact,
promulgation for the whole Church. This is certainly suffi-
cient if the Supreme Pontiff makes known his intention to bind
the whole Church by mere publication in Rome, as Leo XIII
seems to have done in his legislation about forbidden books: 1
Not unfrequently there is a special clause in ecclesiastical laws
which defines the mode of promulgation, as in the decree
Tametsi of the Council of Trent (sess. 24, De Ref. Matrim.,
c. i), in the Constitution of Clement XIV, Dominus ac Re-
demptor, July 21, 1773, and in the Constitution of Leo XIII,
Romanos Pontifices, May 8, 1881 . Sometimes a new law is sent
to the Bishops, whose duty it is to see to the execution of the
Pontiff's will.
The new Code of Canon Law prescribes (Can. 9) that laws
made by the Apostolic See are promulgated by their publica-
tion in the official Acta Apostolicae Sedis, unless in particular
cases some other mode of promulgation is prescribed ; and they
only begin to have force after the elapse of three months from
the date of the number of the Acta Apostolicae Sedis in which
they are published, unless from the nature of the matter they
bind immediately or a shorter or longer term is specially and
expressly laid down in the law itself.
The Fathers of a Plenary or Provincial Council themselves
determine the mode and time of promulgation of the decrees
of the Council after revision by the Sacred Congregation of
the Council (Can. 291); a Bishop determines the mode of
promulgation of his own laws in or out of Synod (Can. 335,
sec. 2).
2. From what has been already said it will be clear how a
law differs from a precept. A law is a regulation made by a
public authority for the common good, and directly affects
a definite territory, and indirectly those who live therein. It
is stable and permanent, as is the society for whose good it is
made. A precept, on the other hand, is imposed also by
private authority for the good of the individual, and directly
affects the person haeret ossibus. Regularly a precept is
limited in time and expires with the death or removal from
office of him who gave it.
1 Index librorum prohibitorum, 1900.
THE NATURE OF LAW 49
3. Laws are divine or human. Divine law is either natural
or positive. The natural law is promulgated in the rational
nature of man, and is a participation in human reason of the
eternal law of God, which bids us observe right order, and
forbids its disturbance. Positive divine law is made known
by revelation.
Human law is ecclesiastical when made by the authority of
the Church ; municipal or civil when it is the ordinance of the
civil ruler. The term civil is frequently restricted to the
Roman civil law.
Other divisions of law and their application will be clear
from the chapters which follow.
i.
CHAPTER II
ON THE POWER OF MAKING LAWS
i. No body of men could live together in peace without being
subject to a supreme authority whose function it is to look
after the common weal by defending the rights of all, repressing
and punishing crime, and taking measures in the common
interest which are beyond the power of private enterprise.
God, from whom all power is derived, has willed that there
should be a separate supreme spiritual authority to look after
the spiritual welfare of mankind, and another to look after its
temporal welfare. As Leo XIII teaches, in his Constitution
Immortale Dei, November i, 1885 : " The Almighty, therefore,
has appointed the charge of the human race between two
powers, the ecclesiastical and the civil, the one being set over
divine, and the other over human things. Each in its kind is
supreme, each has fixed limits within which it is contained,
limits which are defined by the nature and special object of
the province of each, so that there is, we may say, an orbit
traced out within which the action of each is brought into play
by its own native right. . . . One of the two has for its
proximate and chief object the well-being of this mortal life;
the other the everlasting joys of heaven. Whatever, therefore,
in things human is of a sacred character, whatever belongs either
of its own nature or by reason of the end to which it is referred,
to the salvation of souls, or to the worship of God, is subject
to the power and judgement of the Church. Whatever is to
be ranged under the civil and political order is rightly subject
to the civil authority. Jesus Christ has himself given com-
mand that what is Caesar's is to be rendered to Caesar, and
that whatever belongs to God is to be rendered to God."
The spiritual and the civil power use their authority to
make laws, and in this chapter we propose briefly to indicate
those who have legislative authority in the Catholic Church.
2. The power of making laws resides in the supreme
authority in the Church, and in any person or body of men
to whom the power has been communicated.
(a) The Pope, by the primacy of jurisdiction which he
receives from God, is the supreme lawgiver in the Church.
50
ON THE POWER OF MAKING LAWS 51
He exercises this function either alone or in a general council.
Sometimes he acts in his own name, sometimes he uses one
of the Roman Congregations for his purpose. The Congrega-
tion of Sacred Rites (S.R.C.) has received from the Pope
authority to make laws for the whole Church in liturgical
matters which have been entrusted to its supervision. 1
The general decrees, then, of the S.R.C. bind the whole
Latin Church by their own authority. The same must be
said of special decrees which are comprehensive i.e., which
merely interpret the meaning and application of a pre-existing
law. Decrees made in answer to special questions, if they
are not promulgated authentically, and especially if they are
extensive i.e., if they contain a new provision of law bind the
parties concerned, but probably impose no obligation on others.
(b) The Bishops, assembled in national or provincial
councils, or separately in their respective dioceses, make laws
for their own subjects. 2 A Bishop's legislative authority is
usually exercised in his diocesan synod; other ordinances are
looked upon rather as precepts than laws, unless the Bishop,
after consulting his chapter, specially expresses his mind to
the contrary. By modern ecclesiastical law, an Archbishop
has no legislative authority over his suffragans or their dioceses.
He can hear appeals from their subjects, and in special cases
he supplies for their neglect of duty (Can. 274).
Bishops, inasmuch as they are subject to the common law
of the Church and the decrees of the Holy See, can make no
law which is contrary to these.
(c) Religious Orders have power to make laws for their own
members. The power is exercised according to the special
Constitutions and Rules approved by the Holy See for each
Order. Orders of women, however, have no legislative
authority, though the superioresses, by virtue of what is called
dominative power, can of course give binding precepts to their
subjects.
(d) Parish priests, since they have no jurisdiction in the
external forum, are incapable of making laws.
It belongs to canon law to treat more fully this and similar
matters connected with laws ; nor is it any part of the duty of
a moral theologian to inquire what is the legislative authority
in civil matters.
1 Pius IX, May 23, 1846; Can. 253. 2 Can. 335.
CHAPTER III
THE MATTER OF LAW
i. IT is the duty of the legislative authority to promote the
common good by wise, just, and useful laws. It should appor-
tion burdens according to the principles of distributive justice,
so that they may not press unduly on the shoulders of particular
classes and persons. Over-legislation should be avoided;
something must be left to private initiative; individuals and
families should be allowed as much freedom as is compatible
with the public welfare. Even prohibitive legislation will be
kept within the bounds of moderation in a well-ordered State;
not all evils will be forbidden, but some even of the more
serious breaches of the moral code will be tolerated by the
State, lest by trying to force people to be good greater harm
may ensue. What is conducive to the common weal will be
the legislator's guide in the framing of laws. 1
2. Human laws cannot be contrary to the divine law, from
which they derive all their force and efficacy, so that a law
which prescribes something morally wrong is no law at all,
and cannot exert any binding force on the conscience. There
is nothing to prevent human law prescribing or forbidding
what is already of obligation or forbidden by the divine law.
A parent is bound by natural, divine, and human law to bring
up his children properly; theft is forbidden by human and
divine law.
3. An obligation which is left indeterminate by the divine
or natural law may be further determined by human law as
to time, place, frequency, and other circumstances affecting
the observance of it. And so the civil law determines at what
age children attain their majority, and which near relatives are
responsible for the support of the indigent poor ; the Church,
too, determines the limits of the impediment of consanguinity
as affecting marriage, the times for the reception of the sacra-
ments of Penance and Holy Communion, and many other
obligations left indefinite by divine or natural law.
4. An act which in itself is indifferent may in certain cir-
cumstances become opposed to the public welfare, or on the
1 St Thomas, i-z, q. 96, a. 3.
53
THE MATTER OF LAW 53
contrary may conduce to it. The legislative authority may,
for the public good and to further the end for which the society
exists, prescribe or prohibit such acts according to circum-
stances. In itself it is indifferent on which side of the road
a carriage is driven, and whether it passes another on the right
or on the left ; but where traffic is considerable it is necessary
that these matters should be regulated by law or custom. To
eat meat on Friday is in itself as lawful as to eat it on any
other day, but the Church has forbidden it in order that her
children may exercise themselves in the practice of temperance
and mortification of the sensual appetite. When an indifferent
act or one which already belongs to some special virtue is
commanded by the legislator from a motive which belongs to
some other virtue, the act commanded henceforth belongs
to the virtue which furnished the motive, if the legislator so
wills. And so, inasmuch as the j Church prescribes fasting
Communion out of reverence for the Blessed Sacrament, one
who receives not fasting is guilty of irreverence and sacrilege,
though, apart from the Church's law, to receive Holy Com-
munion not fasting would not be sinful. For just as an action
may get a special moral quality from the end for which the
agent performs it, so the motive of the legislator may give
a distinct moral quality to an act which he commands. The
same holds good of prohibitive laws.
5. Acts of heroic virtue which would be impossible for the
body of the people cannot ordinarily be prescribed by law.
A law must be morally possible of observance for the general
body of the subjects. When, however, the public good
requires acts of heroism, and especially when a state of life
has been voluntarily assumed which demands heroism, acts of
heroic virtue may then become matter of law. The soldier
must obey orders at the risk of life, and the Church is justified
in prescribing celibacy to all who freely choose to enter sacred
orders. If anyone feels that he cannot observe the law, let
him not volunteer for the service.
6. Merely internal acts which do not conduce to the common
good of civil society, cannot be the subject-matter of civil law.
The Church's end is the spiritual welfare of her children, to
which internal acts contribute much ; and so, many theologians
hold that the Church may prescribe merely internal acts.
She certainly has the power of prescribing internal actions
concomitantly, as it is said, when they form part of a whole
human action. Therefore, in commanding her children to
hear Mass on Sundays, she bids them have the necessary
54 ON LAW
intention, without which a human act is impossible. The
Church also has authority over internal acts when she deter-
mines the divine law about articles of faith, declaring that such
a truth is to be believed, or that acts of faith, repentance, or
charity are to be elicited at certain times. Moreover, in the
internal forum of Penance the priest can impose internal acts
of virtue as satisfaction for sins confessed. Religious, too,
who have voluntarily by vow subjected themselves to their
superiors, are bound to obey the rules and constitutions which
prescribe times for meditation and prayer. All theologians
are agreed on these points. But apart from these special cases,
it is the more common teaching of theologians and canonists
that the Church has no power to make laws about merely
internal acts. For such acts are not cognizable in the external
forum of the Church, and, since the legislative power is co-
extensive with the judicial, it would seem that she cannot
make laws about them. 1
1 Inn. Ill, c. 34, de Simonia; Trent, 34, c. i, de Ref.; St Thomas,
3-3, q. 104, a. 5.
CHAPTER IV
THE SUBJECTS OF LAW
i. ALL those are subject to the law and bound to yield it
obedience who live under the authority of the legislator.
And so, inasmuch as the natural law is derived from the
eternal law of God, and is nothing else than the rule of action
suited to human nature as such, all who participate in human
nature are subject to the law of nature. Infants and madmen
who do something forbidden by the law of nature are indeed
excused from formal sin for want pf knowledge, but anyone
who wilfully provokes them to such actions commits sin by
their means in so doing.
2. Human law is intended to be a guide for reasonable
human beings, and so the habitual use of reason is required
in order to be subject to human law. Imbeciles and children
who have not yet attained the use of reason are not subject
to positive law. Regularly the Church presumes that at seven
years of age children attain the use of reason, and inasmuch
as the law provides for what ordinarily happens we may say
that at seven years children begin to be obliged to hear Mass
and to fulfil the other duties of the Christian life (Can. 12).
It is well that they should be accustomed to obey such laws
as those of hearing Mass and abstaining even earlier. There
are special reasons for deferring the obligation of fasting, and
sometimes for deferring for a time that of receiving Holy
Communion (Can. 859).
Drunken people remain subject to the Church's law, for
habitually they have the use of reason.
3. Men become subject to the Church by Christian baptism,
and so all baptized persons, and these alone, are subject to
the laws of the Church. Heretics and schismatics who are
validly baptized are per se subject to the Church's laws, but
a probable opinion teaches that it is not the Church's intention
to bind them by such of her laws as proximately regard the sanc-
tification of individual souls rather than the public good. Such
are the laws of keeping certain days holy, of abstaining, of fast-
ing, of hearing Mass on Sundays. Harm rather than good would
follow from intending these laws to bind heretics and schismatics.
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56 ON LAW
4. Particular ecclesiastical laws are made for particular
countries, or provinces, or dioceses, by the competent authority,
and bind all subjects living within the territories in question.
One is subject to local law by having a domicile or quasi- domi-
cile in the territory for which the law is made. To constitute
a domicile in ecclesiastical law, two conditions are required.
The person domiciled must have taken up his abode in a
parish, or quasi-parish, or at least in a diocese, vicariate
apostolic, or prefecture apostolic; and this abode must be
joined either with the intention of perpetually remaining there,
if they are not called away, or with the actual dwelling there
for ten years.
A quasi- domicile is acquired by taking up his abode in the
place as above, joined with the intention of remaining there
for the greater part of a year if not called away, or with the
actual dwelling there for the greater part of a year.
A domicile and a quasi- domicile are lost by those who have
them leaving their abode with the intention of not returning
there ; but wives always retain the domicile of their husbands
unless they are lawfully separated from them, and minors that
of their guardians (Can. 13, 92, 93, 95).
Whoever, then, resides in a place, having therein a domicile
or quasi- domicile is subject to the particular laws of that place.
Contracts, too, are governed by the law of the place where
they are made, and whoever commits a crime is amenable to
the law of the country where it is committed.
While outside the limits of the territory in which one is
domiciled, there is no obligation to obey the particular laws
of that territory, for the law is territorial and does not bind
beyond the limits of the territory for which it was made.
A stranger (peregrinus), or one who has a domicile in another
place, but at present is staying elsewhere, is not bound by the
particular laws of the place where he is staying ; for he is not
subject to their authority by having either a domicile or a quasi-
domicile in the place. And so, if an English Catholic happened
to be in Dublin on the feast of St Patrick, which is kept there
as a day of obligation, he would not be bound to hear Mass ;
nor would a Dublin man who happened to be staying on that
day in England. However, a stranger staying in a place where
the common law of the Church is observed is bound to act
according to its provisions, though there may be a dispensation
from its observance in the place where he has his domicile.
And so an English Catholic staying in Rome should abstain
from flesh meat on Saturday as well as on Friday in Ember
THE SUBJECTS OF LAW 57
week. Moreover, any contracts that he may enter into or
crimes that he may commit subject him to the laws of the
country where he is staying in those respects (Can. 14).
Homeless people (vagi) are bound by the general and par-
ticular laws which are in force in the place where they are
staying (Can. 14, sec. 2).
Regulars and their monasteries are exempt from episcopal
authority, and so in general are not subject to the laws
made by the Bishops for their dioceses. There are, how-
ever, many exceptions to this general rule, for in spite of
their exemption regulars have in special cases been subjected
by the Holy See to the ordinary or else delegated authority
of diocesan Bishops. The special cases are treated of by
canonists (Can. 615).
CHAPTER V
ON THE ACCEPTANCE OF A LAW
i. LEGISLATIVE authority in the Church is derived from God
and not from the people, so that an ecclesiastical law receives
its binding force not from the will of the people but from the
will of the legislator, made known by the promulgation of a
law. An ecclesiastical law, then, binds those for whom it is
made, independently of the acceptance of the law by the
people (Can. 218).
2. Practically, however, if a law is not accepted or acted on
by the people, it may in various circumstances be said no
longer to be of obligation. If the law was never put in force,
and acts contrary to it were known to and connived at by
authority, the law may be said not to bind for want of accept-
ance. Really it does not bind because the ruler does not
urge it, but tacitly consents to its non-observance. Similarly,
if the greater and saner portion of a community do not observe
a law, it may be presumed that it is not the legislator's will to
bind the rest. It is obvious that there is question here only
of disciplinary laws, for if the law decides matters of faith,
obedience is at once imperative.
3. It is the duty of Bishops to make known to their people
and to execute new laws made by the Holy See, especially if
the new laws were sent to them for the purpose, or if it is
thought likely that they will be useful to the diocese.
If, however, a Bishop thinks that a new pontifical law is
not suited to his diocese, he not only may, but it is his duty
to represent the matter to the Holy See, and in the meantime
the obligation of the law is suspended. If the Holy See, after
weighing the matter, insists on the observance of the law,
obedience must be rendered to lawful authority. 1
1 Ben. XIV, De Synodo, 9, c. 8.
CHAPTER VI
ON THE OBLIGATION OF LAW
i. BY obligation we here understand a moral necessity arising
from a law to do or to forbear doing something. It is said
to be a moral necessity, not physical, because it does not subject
the person bound to physical but moral constraint to act
according to the law ; he must act thus if he would do his duty,
if he would act reasonably, if he would escape guilt, sin, and
punishment.
In a slightly restricted sense a moral obligation is said to
be imposed on those subject to a law which binds in conscience
under pain of committing sin. Such a law is called a moral
law. If the intention of the legislator is not to bind the con-
science under pain of sin, but only under pain of paying the
penalty imposed, the law is called a penal law. If the law
binds under pain of sin, and also imposes a penalty on trans-
gressors, it is called a mixed law.
\2. The obligation of a law depends primarily on the will of
the legislator. For we are here considering not the natural
law, which is imposed by the very nature of things and by
God, but positive law, which depends on the will of the legis-
lative authority for its existence, and so also for the kind and
quantity of obligation which it imposes. The legislator may
intend to impose a moral obligation under pain of sin, for God
commands us to obey our lawful superiors when they impose
a strict precept on us, and disobedience to them is an offence
against him an4 a sin. If the matter is of sufficient importance,
he may intend the obligation to be serious, so that a breach
of it would be grievously sinful, or he may intend it to be
only slight, whose breach would be a venial sin. It would
be unreasonable to intend to bind under pain of grave sin in
a light and trivial matter, and so a human legislator cannot do
this. The legislator may also, if he choose, intend to bind
only under pain of paying the penalty, and then the subject
in case of violation of the law will only be bound in conscience
to do this. The kind of obligation, then, which a law imposes
depends principally on the will of the legislator, but secondarily
also on the matter of the precept.
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60 ON LAW
3. The kind and quantity of obligation imposed by any
particular law may be gathered from the express mind of the
lawgiver. If the matter be capable of a grave obligation, and
in making the law words indicating a strict precept are used
e.g., we command, we severely ordain the presumption is that
the law imposes a grave moral obligation. The same may be
said if a grave censure or other grave penalty is imposed on
transgressors. The interpretation of Doctors, and the way
in which custom interprets a law, are also guides to its binding
force.
4. An affirmative law, which commands something to be
done, is said to bind always but not for always. Thus we are
commanded to pray always i.e., never to abandon prayer
though we are not obliged continually to pray all day long,
but only at suitable times. A negative precept, on the other
hand, binds always and for always, so that we must continually
act according to its prescriptions. At no time on days of
obligation may we do servile work.
5. A law imposes in the first place an obligation on those
subject to it to inform themselves of its existence and pro-
visions, for it imposes the duty of observing it, and this cannot
be done unless the terms are known; knowledge of the law
is the necessary means to the end. A law also forbids us to
put ourselves in the proximate occasion of transgressing it,
for the avoidance of such proximate occasions is also a necessary
means for the observance of the law.
6. A negative law is observed by abstaining from what is
forbidden, for that is the intention of the lawgiver. Provided
that we abstain from servile work on a Sunday, we fulfil that
part of the law; no special intention of riot working or of
fulfilling our obligation is required. An affirmative law which
prescribes something to be done sometimes requires a con-
scious human act for its fulfilment; sometimes it does not.
If the obligation be merely real, as the duty of paying a debt,
even unconscious payment will suffice, provided that the
creditor gets what belongs to him. If a personal obligation
is imposed of performing some action e.g., hearing Mass the
action must be performed in a human manner, by a conscious,
voluntary act. It is not, however, necessary to intend to fulfil
the purpose of the law ; we satisfy the precept of hearing Mass
by intending to hear it and actually doing so ; to fulfil the obliga-
tion it is not necessary to intend to honour God, nor even to
be in a state of grace ; the end of the precept does not fall under
the precept, as the adage has it.
ON THE OBLIGATION OF LAW 61
7. We may sometimes satisfy two obligations by one and
the same action, as when a day of abstinence, on account of
a vigil, falls on a Friday, or a day of obligation falls on a Sunday.
Sometimes, however, the nature of the obligation or the
presumed will of the legislator prohibits this being done.
If a confessor imposed the hearing of Mass for sacramental
penance, it would ordinarily be intended that a Mass not
otherwise of precept should be heard. Nothing hinders the
simultaneous fulfilment of two different obligations by actions
which do not clash. A priest may well say his breviary while
hearing a Mass of ob'igation.
8. If the whole of an obligation cannot be fulfilled, we are
not thereby excused from fulfilling a part, if the matter is
capable of being divided, and thus in some degree the end of
the law is secured. If a priest, for example, cannot say the
whole breviary, he must say what he can, if the portion which
he can say be considerable and the form prescribed by the
Church be observed. However, if a Bishop could not go the
whole way to Rome to make his visit ad limina, there would be
no obligation of going as far as he could.
9. When a fixed time is appointed for the fulfilment of an
obligation, sometimes, according to the will of the legislator,
after the term has passed, the law no longer binds ; sometimes,
on the other hand, the obligation must still be fulfilled. Thus,
if a priest lawfully or unlawfully has omitted his breviary, he
is not bound to make it up on the following day, or if one of
the faithful miss Mass on a Sunday, he is not bound to supply
the omission by hearing it on a week day. On the other hand,
if a debt has not been paid on the date agreed on, it must be
paid as soon as -possible afterward, and if the Easter Com-
munion has not been made at the proper time there still
remains the duty of making it.
CHAPTER VII
ON THE INTERPRETATION OF LAW
i. THE interpretation of law is its genuine explanation accord-
ing to the mind of the lawgiver.
(a) This interpretation may be authentic, doctrinal, or
customary.
Laws are authentically interpreted by the lawgiver, his
successor, and by him to whom this power of interpreting
the law has been granted by them.
An authentic interpretation set forth by way of law has the
same force as the law itself; and if it only declares the words
of the law which in themselves are certain, it does not need
to be promulgated and it has a retrospective force; if it restricts
or extends the law or if it explains a doubtful law, it has not
a retrospective force and it should be promulgated. But
if it is given by way of judicial sentence or rescript in a par-
ticular matter, it has not the force of law, and it only binds the
persons and affects the matters for which it was given (Can. 17).
Doctrinal interpretation is that which doctors and lawyers
make according to the recognized rules of legal interpretation.
It has weight according to the knowledge, skill, experience,
and standing of him who makes the interpretation.
Customary interpretation is that which a law receives from
the practice and conduct of those who are subject to it. It
has very great authority, for it is presumed to have at least
the tacit approval of the lawgiver, and indeed, according to the
adage, " Custom is the best interpreter of law " (Can. 29).
(b) A strict interpretation takes the words of the law in their
literal meaning; a wide interpretation takes the words in a
looser sense.
2. Many rules are given by canonists for the doctrinal inter-
pretation of law. The following are the most important for
our purpose in moral theology :
(a) The words of the law must be taken in their obvious
and natural meaning. The lawgiver must be supposed to
have wished to express himself as clearly as possible, and to
have said what he meant. Sometimes, however, legal terms
have a technical meaning which must be attended to. Thus,
62
ON THE INTERPRETATION OF LAW 63
legitimate in ecclesiastical law is used of children who have
been legitimatized as well as of those who were born in lawful
wedlock.
(b) The mind of the legislator and the scope of the law must
be attended to. This rule does not imply that we must try
to get at the private intention and object which the lawgiver
had in view in making the law. It means that we must con-
sider the circumstances which gave rise to the law, the object
which it was designed to attain as expressed in the law itself,
especially in the narrative or historical portion of it. The
whole law should be pondered, not merely an isolated section ;
and if there is question of interpreting an answer or rescript
sent in reply to a question or petition, this latter must be
carefully considered.
(c) Laws which impose some new burden or restriction
receive a strict interpretation, those which confer a favour a
wide interpretation. For the lawgiver is presumed to be
benignant towards his subjects, and to have expressed himself
with precision and strictness in the disagreeable task of laying
burdens on his people. In such a law, then, the word clerk
will only comprehend the lower ranks of the clergy, whereas
it will comprehend dignitaries and religious in favourable
matters.
(d) A law must not be extended from one case to another
even if the same reason exist in the two cases, for the reason
of the law is not the law. And so although parish priests are
bound to offer Mass on holy days of obligation for their
parishioners, this obligation must not be extended to a parish
priest's assistants, for such priests, though they have the care
of souls, are not parish priests (Can. 475). If, however,
anything unjust, inequitable, or absurd would follow from
the application of this rule, then it must not be applied. And
so, generally, where the law punishes the adultery of the
husband, it must be applied to an adulterous wife; where
power is granted to make a will, legacies may be left too.
The less is contained in the greater (cf. Can. 18 ff.).
3. Epteikeia, or equity, is a benign and equitable interpre-
tation of the law, by which it is not deemed to apply to some
particular case. For cases arise where, if the law were applied,
hardship and harm would be the result. The law is made
for ordinary conditions and is intended to apply in ordinary
circumstances; the lawgiver could not foresee all possible
cases, and he is not presumed to intend the law to press unduly
on individuals, so as to cause special hardship. So that when
64 ON LAW
the observance of the law in any particular case would cause
special hardship which the lawgiver cannot be presumed to
have intended, the person so situated is excused from obeying
the law by an equitable interpretation of it. If, for example,
I should incur serious risk of contracting some disease if I
went out to hear Mass on a Sunday, I am excused from obeying
the precept.
Such equitable interpretations are specially permitted in
affirmative laws, not in those which make an act done contrary
to them null and void. The common good requires that
these should be observed even with grave personal incon-
venience. And so the diriment impediments of marriage do
not cease to bind even when they cause serious inconvenience
in particular cases.
CHAPTER VIII
WHAT EXCUSES FROM OBSERVING THE LAW
i . THE natural law continues to have binding force even though
its observance entails great inconvenience. We must not
commit murder to save the State, nor are we allowed to
tell a lie in order to preserve human life/ Positive law,
however, does not bind with the same rigour. Our Lord
taught us 2 that even the positive divine law does not bind
men when great inconvenience would follow from its observ-
ance. It is an axiom that necessity has no law. This is all
the more true of positive human law, which must be accom-
modated to the moral strength of the majority of the people,
otherwise it will be impossible to observe it, and nobody can
be bound to do what is impossible. So that not only physical
impossibility excuses from the observance of the law, but also
any relatively great difficulty or serious inconvenience which
constitutes moral impossibility (Can. 2205).
No general rule can be given for estimating the degree of
difficulty which would excuse from the duty of observing any
particular law in the concrete. The importance of the law,
the intention of the legislator, the results of non-observance
of the law, the degree of difficulty in the special case, must all
be considered, and a prudent judgement given in view of all
the circumstances.
2. A law binds those to its observance who are subject to
it, but it does not oblige people to remain subject to it. If I
do not like living under a particular law, the law does not
prevent me from going elsewhere into territory where it does
not bind, and thus freeing myself from the duty of observing
it. If I do not like abstaining from flesh meat on days of
abstinence, I may lawfully go and live in Spain, get my Bulla
Cructata, and enjoy my flesh meat. Such an action will be
perfectly lawful, even if I directly intend to withdraw myself
from the authority of the law. I have the right to use my
liberty to go and live where I choose as far as the law is con-
cerned. And when I am outside the particular territory
subject to the law, it no longer binds me.
1 Inn. Ill, c. Super eo, de usuris. a Matt. xii.
' 65 5
66 ON LAW
3. As long as a person remains subject to a law he must
have the will to fulfil its obligations as far as he can, so that
he must not do anything with the intention of making it
impossible for him to observe the law. Moreover, he must
take reasonable means to be able to do what the law com-
mands, for one who is bound to secure some end is bound
to use the necessary means. And so a priest who is going to
travel must take his breviary with him so as to be able to say
his Office ; and time must be made by all Catholics for hearing
Mass, receiving the sacraments, and fulfilling other religious
duties. The question as to what obstacles to the observance
of a law I am bound to remove as far as I can, or whether
and when I commit a sin by doing something which will make
the observance of the law impossible, is one of great practical
difficulty. We have already seen that it is not lawful to put
obstacles in the way of observing a law with the intention
of escaping the obligation. But suppose there is no such
intention, does the precept of hearing Mass, e.g., forbid me
to go to a seaside place where there is no Catholic church,
and where I foresee that I shall not be able to satisfy the
precept ?
This is a type of many practical questions which occur and
for which it is difficult to find a general answer. The law
in question, the intention of the lawgiver, the practice of good
men, and other circumstances, must be weighed in each case.
The answer given by theologians to the special question
proposed may be taken as a guide toward a solution in other
similar cases. They say that such a precept does not oblige
us to foresee and make arrangements for its observance a long
time ahead ; such an obligation would be a great inconvenience
and seriously interfere with our liberty. So that any time
within the week I may go where I like without regard to the
necessity of hearing Mass on the following Sunday. However,
when Sunday is practically at hand, say on Saturday evening,
the precept of hearing Mass begins to be urgent, and forbids
me to do anything without necessity which would make it
impossible for me to fulfil the precept.
In this question, as in others, we are considering what is
of strict obligation under pain of sin ; a good Catholic would
of course try as far as possible to have the opportunity of
fulfilling t his religious duties on a Sunday.
CHAPTER IX
ON THE CESSATION OF LAW
A LAW may cease to bind in various ways. It may be abro-
gated or altogether withdrawn by the legislator, or his successor,
or his superior. For he who made the law can unmake it.
Derogation is the annulling of some portion of the law, while
the rest remains intact. The law may fall into desuetude
from non-observance, or on account of a contrary custom
being introduced. It may also cease to bind because it no
longer attains the purpose for which it was made, and has
become useless. It may cease to bind in particular cases
because a dispensation has been obtained. Something must
be said on custom, on a law becoming useless, and on dis-
pensations. This will be done in the three following sections.
SECTION I
On Custom
1. A custom in the technical sense must be distinguished
from a mere use. A use is a constant manner of acting but
without binding force. Thus we take holy water on entering
the church, and receive blessed ashes on Ash Wednesday,
and palms on Palm Sunday, but there is no obligation of
doing so, and no sin is committed if we neglect these pious
practices; they are only uses. A custom has the force of
law from which it only differs in its origin. It arises from the
repeated acts of the community which it binds. However,
inasmuch as in ecclesiastical matters at least, the community
as such has no legislative authority, the binding force of
ecclesiastical customs is derived from the express, tacit, or
legal consent of the legislative authority. Legal consent to
all customs which have the requisite qualities is given in the
last chapter of the Title on Custom in the Decretals, and
Can. 27.
2. A custom is said to be according to the law if it confirms
and interprets the law by long- continued usage.
It is beside the law if it introduces a new law in a matter
for which no written law exists.
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68 ON LAW
It is contrary to the law when the acts by which the custom
was introduced were forbidden by law. There is nothing
repugnant in the notion of a lawful custom being introduced
by wrongful acts, for when the custom is formed the acts
cease to be forbidden, because the contrary law has in fact
ceased to exist.
3. In order that a custom may have the force of law it must
be reasonable and it must fulfil certain other conditions.
A custom will be reasonable if it is not against the natural
or divine law, against which no custom can prevail, nor fur-
nishes the occasion nor is an incentive to sin, nor is pernicious
and hurtful to the common good. Inasmuch as custom has
the force of law, it cannot be introduced by individuals or by
private families, for whom precepts may be given but laws
cannot be made.
It must be introduced by the repeated acts of the greater
portion of a community or corporate body which is capable
of being the subject of law. How many acts are required to
form a custom depends much on the matter, and must be
left to the prudent judgement of experts.
The acts by which the custom is introduced must be volun-
tary, not the product of ignorance or mistake, and unless the
tacit consent of the legislator is given before, they must
continue for a long time that is, forty years (Can. 27).
4. As custom depends on the will of the ecclesiastical
superior, he may refuse to admit or he may abrogate a
custom.
The clause " Notwithstanding any custom to the con-
trary," which frequently occurs in pontifical legislation, merely
annuls general customs to the contrary, not special ones nor
immemorial customs, nor those of a hundred years' duration.
These require special mention in papal but not in episcopal
legislation. The reason of the difference lies in the fact that
the Pope may easily be unaware of local customs, and he does
not annul what he does not know. But a Bishop is presumed
to know the customs of his diocese, and if he makes a law
which is against a custom he thereby abrogates the latter.
Only a reasonable custom which is immemorial or of a
hundred years' duration can prevail against a law which
contains a clause forbidding future customs to the contrary
(Can. 27). If, however, a law reprobate contrary customs as
abuses, they cannot be introduced as long as the circumstances
remain the same. Such customs would be unreasonable, and
could not have the consent of the legislator.
ON THE CESSATION OF LAW 69
SECTION II
A Law Become Useless
1. A law should further the common good; if it ceases to
do this, it becomes useless, and ceases to be a law. A law
then ceases to bind when it ceases to be useful for the object
for which it was made. However, it not unfrequently happens
that a law was designed to further several objects, and it may
well be that, though it is useless for one purpose, it is of use
for another. The law which requires banns to be published
before marriage is designed to discover impediments if there
be any, and also to secure the publicity of marriage. It may
be absolutely certain that there are no impediments, but for
all that the other object of the law, remains to be secured, and
prevents the law from being useless. The law remains in
force as long as it serves its purpose to some extent, though
it may not attain all the objects for which it was made.
2. A positive law ceases to be of obligation in a particular
case if it becomes hurtful, or if it cannot be observed without
serious inconvenience. But does a law cease to bind in a
particular case when it becomes merely useless, when it fails
in that particular case to attain any of the objects for which
it was made ? This question is disputed among theologians.
The better and more common opinion is that the law does
not then cease to bind. For the law is made for the com-
munity, and if it continues to promote the common good it
retains its binding force for the community. Nor can indi-
viduals shake off the obligation of such a law on the ground
that it is useless for them; they are bound to conform their
actions to the rules which govern the community of which
they are members. Besides, there is always danger of self-
deception in such matters, and it would be a dangerous prin-
ciple to admit that one who thinks that a law is useless as
a guide for his own conduct need not obey the law. If,
however, there be no danger of self-deception, and if it is
quite certain that a law has ceased to be of any use in some
special case, several theologians of weight admit the probability
of the contrary opinion. 1
Canon 21 enacts that laws made to guard against a general
danger continue to bind even though the danger may not
exist in a particular case.
1 Bucceroni, i, n. 172.
70 ON LAW
SECTION III
On Dispensations
i . A dispensation is a relaxation of the law in a particular
case for some special reason. The law still remains in force,
but ,by a dispensation one who would otherwise be bound to
conform to it is withdrawn from the operation of the law.
When a law forbids something to be done without leave, as
when a religious is forbidden to go out without the leave of
his superior, the going out with leave is not against the law,
but is in keeping with it. On the other hand, when one eats
meat on a Friday, with a dispensation, the act is against the
law, but the obligation of the law has been removed from the
person dispensed. As jurisdiction is required to make a law,
so ordinary or delegated jurisdiction is necessary for granting
a dispensation. Ordinary jurisdiction is that which by law
is annexed to an office ; delegated jurisdiction is exercised by
the commission of one who has ordinary jurisdiction (Can.
A good cause is always required in order that a dispensation
may be lawfully asked for and granted. All should conform
to the laws made for the common good, and the superior who
without just cause exempts anyone from the duty of obeying
a law is unfaithful to his office, and commits the sin of accept-
ance of persons. If such a superior uses only delegated
authority to dispense, he acts not only unlawfully, but invalidly,
because he received his authority to grant dispensations only
for a good cause. He therefore exceeds the limits of his
authority by attempting to dispense without good reason.
Similarly, one who asks for a dispensation without good cause
does wrong.
A good .cause for granting a dispensation must not be
altogether trivial, nor is it so grave that of itself it exempts
from the obligation of obeying the law. Beyond saying this,
it is difficult to be more precise. Much depends on the
particular law in question, and on the circumstances of the case.
2. A legislator can dispense in his own laws, in those of his
predecessors, and in those of his subordinates by his ordinary
jurisdiction; he cannot dispense in the laws of his superior
unless he has received delegated authority for the purpose.
(a) The Pope, then, can dispense in all ecclesiastical laws,
even in those which have been made in a general council.
He cannot dispense in the natural or divine law; but in vows,
ON THE CESSATION OF LAW 71
oaths, and in marriage which has not been consummated, the
Pope can for good cause dispense in the name of God, or at
least declare that in certain circumstances they have ceased
to exist; for whether he then in the strict sense dispenses, or
only declares the sense of the divine law, is a disputed point.
In practice there is little difference between the two views.
(b) Bishops can dispense in episcopal laws, and even in
those of a provincial or plenary council, unless such authority
has been reserved. Although they have no authority over
the common law of the Church per se, yet by custom and the
presumed consent of the Pope, Bishops can in particular
cases dispense from the common law in trivial and doubtful
matters, in matters which are of frequent occurrence, as in
abstinence, fasting, observance of days of obligation, in the
divine Office, and even in other matters of greater moment
which admit of no delay. 1
Bishops can dispense not only their own subjects, but
strangers also, in such matters as fasting, abstinence, observance
of days of obligation, vows, etc. 2
(c) Regular prelates have quasi- episcopal authority over
their own subjects, and can do for them what Bishops can do
for their subjects. Moreover, many privileges have been
granted by the Popes to regular Orders, by virtue of which
they can dispense not only their own subjects but others also.
(d) Although parish priests per se cannot dispense either
in general or in particular laws (Can. 83), yet the power is
expressly granted to them to dispense in particular cases and
for a good reason even outside their parishes particular indi-
viduals and families subject to them, and within their parishes
strangers also, from the common law of observing feast days
and also from the observance of fasting or abstinence or of
both fasting and abstinence (Can. 1245). Those who have
the cure of souls in places where there are no parish priests
in the strict sense have the same authority from the necessity
of the case, from custom, and often by implicit or explicit grant. 3
3. If there be a good and sufficient cause for granting a
dispensation, the superior may ordinarily either grant it or
refuse to do so, as he judges fit ; but if serious public or private
harm would follow from not granting a dispensation, charity
may require that the favour should be granted. But even in
that case, unless the inconvenience is so serious that it excuses
1 St Alphonsus, i, n. 190.
2 Can. 1245, 1313.
3 Concil. Westmon., d. 23, nn. 1,3.
72 ON LAW
from the obligation of the law, if a dispensation is refused,
the law must be obeyed.
4. The power of granting dispensations in general but not
for a particular case (Can. 85) is of wide interpretation, for
it exists for the common good; a dispensation, however, is a
wound inflicted on the law, for the law should be uniformly
observed by all as far as possible, and so a dispensation is of
strict interpretation, and when in doubt as to whether it
extends to some particular case the law should be observed.
5. A dispensation granted for a country, province, or
diocese, may be taken advantage of by all who are staying
even for a time in the territory, but no one may use it outside
the territory for which it is granted. The law for the time
being does not bind within the territory dispensed, but it
does bind outside. On the other hand, a personal dispensa-
tion, like a precept, follows the person, and may be used any-
where, unless specially restricted, as is the case with the
dispensation to eat meat granted by the Bulla Cruciata, which
cannot be used outside the limits named in the Bull. 1
6. A dispensation ceases by being recalled by the legislator.
One who has granted a dispensation by delegated authority
may also for good reason recall his dispensation, and in that
case the law begins to bind again. However, one who has
been dispensed from a vow cannot again be bound by vow
without his own free consent. The person dispensed may
also renounce a dispensation granted in his favour, and, in
the case of a dispensation granted from a vow, by renunciation
of the dispensation the vow binds again. However, the obliga-
tion of a law can only be reimposed by the competent authority,
so that the renunciation of a dispensation from a law must
be accepted by the superior in order to be effective. A dis-
pensation also ceases if the whole cause for granting it cease
before the execution of the dispensation, or, if the cause is
continuous, whenever it entirely ceases. And so if a dispensa-
tion from abstinence was granted on account of a weak state
of health, the dispensation will cease and the law will again
bind when the health has been completely established. If,
however, a dispensation has been put in execution, or has
been granted absolutely, it will not cease even though the
cause no longer exists. And so a dispensation to marry,
granted and already executed ad prolem legitimandam, will not
cease though the child die before the marriage.
1 " Intra limites tantum Hispanicae ditionis." A.S.S. 35 , p. 565.
CHAPTER X
VARIOUS SPECIES OF LAW
SECTION I
The Natural Law
i. CERTAIN actions are in themselves conformable to right
reason, while others are opposed to it. On account of the
relation between parent and child, right reason tells us that
it becomes a child to show love and reverence toward his
parents ; on the other hand, hatred and ill-treatment of one's
parents are opposed to right reason. Conscience tells us,
moreover, that it is our " duty " to love and reverence our
parents, that we " ought "to do so, that we are " bound " to
do so; thereby making known to us the will and precept of
a superior, the will and command of God, the Author of
nature, and our Lord and Master. He cannot be indifferent
as to whether we follow the dictates of right reason or not;
he necessarily, as he is good and holy, wills that right order
should be observed by us.
The rules of conduct which right reason manifests to us,
and conscience, the voice of God, commands us to follow,
constitute the natural law, which is a participation in human
reason of the eternal law of God, willing that right order
should be observed, forbidding it to be disturbed.
2. The objects, then, of the natural law are all those actions
which in themselves are conformable or not conformable to
rational human nature. They are actions which are neces-
sarily prescribed, because they are demanded by human
nature, or, on the contrary, they are necessarily forbidden,
because they are contrary to the demands of human nature.
They are good or evil, not merely because they are com-
manded or forbidden by lawful authority, but because in
themselves they are becoming or unbecoming for man to
perform because human nature is what it is. This is the
ground of the well-known distinction between mala in se and
mala quia prohibita.
3. As rational human nature remains substantially the same,
and its essential relations do not change, it follows that the
73
74 ON LAW
duties which the natural law imposes on man do not change
substantially either. The natural law, then, in itself and
objectively is universal and unchanging ; it binds all men at all
times. However, it does not follow that the natural law is
always and everywhere equally well known. In its broad
general principles, indeed, it has been known and taught at
all times; it would be impossible for human society to con-
tinue unless the general principles of the natural law were
known and acted on. Any serious departure from the law
of nature soon brings with it its own remedy and correction
by the stern elimination of the delinquent. Still there may
be, and there is, ignorance of particular details and applications
of the law of nature, even in matters of importance and of
frequent occurrence. This is true not only of savage and
untutored races, not only of primitive races, but even of
civilized and Christian peoples. Theologians readily admit
this. Many theologians of note allow that among such peoples
there may exist ignorance of the malice of fornication ; they
warn us that other acts against the natural law are sometimes
done in good faith, without any knowledge of their malice.
The presumption, then, is that among Christians the general
principles of the law of nature are known, but the confessor
must be prepared to meet with cases of ignorance of the
particular details and applications of it.
SECTION II
The Positive Divine Law
i. Besides the natural law, there are certain positive pre-
cepts which God has imposed on mankind. These are known
to us from the manifestation of the divine will which we have
in revelation, and especially in the Old and New Testament.
Theologians divide the positive laws of the Old Testament
into ceremonial, judicial, and moral precepts. The ceremonial
precepts had reference to the system of religious worship
established by God under the Old Law, the judicial regulated
the civil polity of the chosen people of God, and when the
old dispensation gave place to the new at the coming of our
Lord both ceased to have binding force. Our Lord, however,
by no means abolished the moral precepts contained in the
Old Law; on the contrary, he promulgated them anew and
perfected them. 1
1 Matt, v 17.
VARIOUS SPECIES OF LAW 75
2. In the New Law of Christ there are no new moral
precepts except such as follow from the truths of faith which
our Lord made known to us, and from the institution of the
sacraments. We are under moral obligation to believe
explicitly in the Blessed Trinity and in the Incarnation, as
well as in other articles of the Christian faith. We are bound
to receive the holy Eucharist and other sacraments instituted
by Christ. But besides such as these, it is the common
teaching of theologians that the Christian dispensation contains
no new moral precepts. If our Lord called his precept of
love new, he did not mean that the great commandment did
not bind under the Old Law, but only that he urged it anew,
gave us new motives to practise it, and especially his own
divine example and wish. He also corrected some false inter-
pretations of the moral law, which were current among the
Jews of his time ; he developed what was implicitly contained
in the moral precepts of the Decalogue, and he added to the
precepts counsels of great perfection, which he proposed as
the ideal of the Christian life, but which he did not command
all to follow under pain of sin. In moral theology we abstain
as a rule from treating of what concerns perfection ; it is our
task to distinguish between what is sinful and what is not,
for the use of the confessor in the sacred tribunal of Penance.
3. The law of Christ is meant not for a particular nation,
but for all men. Christ commanded his followers to preach
to the whole world, to teach all men to observe whatsoever
he had commanded, and the new dispensation was not to be
merely temporary, like the old, but it was to last to the end
of time. 1
SECTION III
On Ecclesiastical Law
We saw above that the Catholic Church has received from
her divine Founder full and independent authority to make
laws, binding upon all her children in matters which pertain
to religion and the salvation of souls. She has constantly
used this power which Jesus Christ gave her. Various col-
lections of Church law were made from an early period in her
history, but those which are contained in the Corpus Juris
are the most celebrated. The Corpus Juris is usually divided
into two volumes. The first contains the Decretum of Gratian,
a Benedictine monk, who composed his work about the middle
1 Matt, xxviii 19.
76 ON LAW
of the twelfth century. It is a private collection, and so the
documents of which it is composed have only the authority
derived from their origin, unless custom or subsequent appro-
bation has given special canons greater weight. The second
volume, on the contrary, contains several official collections,
made by the authority of the Holy See. These are the
Decretals of Gregory IX, the Sext, and the Clementines.
Any papal constitution contained in these collections has
authority from the very fact of its insertion in the Corpus
Juris. The second volume also contains the Extravagants
of John XXII, and the Common Extravagants, both of which
are private collections, although inserted in the Corpus Juris.
The Corpus Juris contains the ancient law of the Catholic
Church, which has been modified and accommodated to the
times by more recent councils and constitutions of the Holy
See. The Council of Trent especially made many changes
demanded by the altered circumstances of the times, and the
Popes have at different times issued a great number of con-
stitutions and laws to meet the constantly changing wants
of the Church. These constitutions are usually quoted by
giving the Pope's name and the initial words, together with
the date of the document.
Early in the year 1904 Pius X ordered the common law
of the Western Church to be codified. The work was finished
and promulgated by Benedict XV on Whit Sunday, 1917.
This new Codex Juris Canonici came into force on May 19,
1918. It has binding force throughout the Western Church.
Besides the common law which binds the whole Church,
each country, province, and diocese has its own special laws
and customs. The four Councils of Westminster contain the
special provincial laws which bind the Catholics of England
and Wales.
SECTION IV
On Penal and Voiding Laws
i . We saw in Chapter VI that if the legislator chooses, and
if he thinks it will be for the public good, he may intend a
positive law made by him to bind, not under pain of com-
mitting sin by its mere violation, but only under pain of being
obliged to pay the penalty imposed. Such a law is, as we
saw, called by theologians a penal law. Besides the rules and
constitutions of certain religious orders, ecclesiastical legis-
lation does not afford many examples of penal laws. As a rule,
VARIOUS SPECIES OF LAW 77
ecclesiastical laws are either moral laws or mixed ; they forbid
or command an action under pain of sin, and frequently they
impose a penalty on transgressors.
It may be asked whether ignorance excuses from the penalty
imposed by a law. This question is now settled by Canon
2229.
Sec. i. Affected ignorance, whether of a law or of a penalty
only, excuses from no penalties latae sententiae.
Sec. ii. If a law has the words, shall have presumed, dared,
knowingly, studiously, rashly, designedly done it, or other similar
phrases which require full knowledge and deliberation, any
diminution of imputability whether on the part of the intellect,
or of the will, exempts from penalties latae sententiae.
Sec. iii. If a law has not those words, ignorance of the law, or
even of the penalty alone, if it were crass or supine, exempts
from no penalty latae sententiae; if it Were not crass or supine
it excuses from medicinal penalties, but not from vindictive
penalties 'la tae sententiae.
2. Some penalties are by the will of the legislator incurred
by the very fact of committing the crime to which the penalty
is attached ; others require the sentence of the judge. Penalties
which require some action on the part of the delinquent, and
especially if deprivation of office is annexed to it, as a rule
require the sentence of a judge; the guilty party cannot be
expected to punish himself.
3. In order to make sure of attaining the end he has in
view, the legislator sometimes annuls and makes void some
act which otherwise would have its natural effect. Such
a law is called a voiding or annulling law, and there are many
examples of it both in civil and ecclesiastical legislation. Thus
a deed is void unless sealed, signed, and delivered; a will is
void unless made with the requisite formalities; marriage
between near relations is null and void. Sometimes the law
makes an act voidable only, and not immediately void, at the
instance of someone who must move in the matter ; otherwise
the act will remain valid. Thus a contract entered into under
constraint is voidable by English law; a gift made of his
property by a religious under simple vows is voidable by his
superior, unless it has taken effect and a third party has thereby
acquired rights. Sometimes the law does not annul the act
or make it voidable, but it refuses to grant an action to vindicate
a claim or it bars the remedy. Thus English law will not
aid the winner to recover a wager, nor does an action lie to
recover payment of a debt barred by lapse of time.
78 ON LAW
4. A voiding law sometimes directly affects the act, and
makes it of no effect, as does an impediment of marriage ; some-
times it immediately affects the capacity of the person, as eccle-
siastical law deprives religious who are solemnly professed of the
capacity to make a valid will ; sometimes it annuls an act desti-
tute of certain formalities, as a clandestine contract of marriage.
5. If a voiding law also prohibits the acts which it annuls,
it binds subjects not to perform such actions; charity and
justice require also that a lawyer employed to make a will
should draw it validly according to the law; otherwise one
who performs an act made void by law, but which is not
morally wrong or injurious to others, does not commit a sin.
6. Neither ignorance, nor grave fear, nor serious private
inconvenience avail to make valid an act which has been made
void by the law. For none of these causes affects the objec-
tive validity of the act which the law strikes at for the common
good. If, however, a voiding law causes great public incon-
venience, then it ceases to be for the common good; it ceases
to be useful, and thereby ceases to be a law with binding force.
SECTION V
On Civil or Municipal Law
i. The civil authority has full power to make laws in order
to the attainment of its own special end, which is the common
temporal welfare of its subjects. If these laws are just, they
cannot be ignored by the moral theologian, for very many
practical questions will depend on them for their solution.
When the classical authors published their folios on moral
theology, they appealed for the most part to the jus commune,
the common law of Christendom, which was the Roman civil
law slightly modified by local enactments and customs.
Nowadays this cannot be done. The unity of Christendom
with its common, universally accepted stock of ideas and laws,
no longer exists, and regard must be paid to municipal or
local law. Especially in England and in America must this
be done, for the system of law which is in force among us is
distinct from the Roman civil law, and from thk modern
European systems which are largely based upon it.
In this section, then, we will consider the bearing of English
law on questions of conscience, and try to lay down certain
general principles which will guide us towards the solution
of particular cases as they arise.
We saw above that the legislative authority in civil matters
VARIOUS SPECIES OF LAW 79
can bind the conscience under pain of sin by its laws, if it
so choose, for God bids us obey lawful authority. It is clear,
too, that if the civil authority transgresses the limits assigned
to it, and makes laws which conflict with the law of God, or
with the law of the Church in her own sphere, such civil
ordinances have no binding force. Laws, then, which affect
to dissolve the bond of marriage, which refuse to acknowledge
rights of religious granted by the Church, and others of a similar
nature, are no true laws at all, and need not be regarded,
except in so far as is necessary to avoid greater evil.
2. With regard, however, to such laws as it is within the
competence of the State to make, conscience obliges us to
pay loyal obedience to those which urge and apply the law
of nature. Near relatives are bound to support the indigent
poor because it is their natural duty, and also because the
State commands it; and, similarly, ' crime must be avoided
because it is wrong, and because the State forbids it. Where
the law of nature is indeterminate and vague, but where the
positive law has stepped in to define rights for the common
good, conscience must also submit to the civil law. Unless
we admit this, we shall have to say that in such matters there
is no certain and definite rule for conscience to follow; rights
and obligations will be left in uncertainty, to the serious
disturbance of men's consciences and the public inconvenience.
Laws, therefore, which govern prescription, the rights of
inventors and authors, the distribution of the property of
intestates, the property rights of married women, the capacity
of minors, and contracts, will have binding force in both the
external and internal forum. 1
3. Certain laws merely refuse an action to vindicate a claim
or bar the remedy. Such laws do not annul or invalidate any
natural right which may exist in the case; the law cannot
produce an effect which was never intended by the legislator,
and which is repudiated by those who administer the law.
A debt, then, which is barred by statute still remains a debt,
and must be paid; an unstamped document may suffice to
prove an obligation in conscience, though it would not be
admitted in a court of justice until the defect was made good ;
contracts seriously entered into and completed will bind the
conscience, even though the law will not enforce them because
they are not in writing, or because there is not the considera-
tion which is required by law.
1 D'Annibale, i, n. 206. Codex juris canonici, passim. See Slater ,
Points of Church Law, 35.
8o ON LAW
4. A very probable opinion of long standing in England
maintains that merely positive laws are penal, and do not bind
under sin except to submit to the penalty in case of violation,
and if it be imposed. Of course, it is [well that all subjects
should loyally obey all the just laws of their country, and good
citizens will make a point of doing so ; but in moral theology
we are concerned with the question of sin, and it is probable
that one who violates a positive law of England does not
commit sin thereby if he be prepared to submit to the penalty,
if imposed. This is the teaching of Blackstone, and although
other views concerning legal obligation have become fashion-
able since he wrote, his opinion would seem not to be materially
affected thereby. According to Austin, the chance of incurring
the evil imposed by the legislator on those who transgress his
laws is the only possible obligation of law a doctrine which
would make all laws penal, and nothing else but penal. The
idealist school does not accept Austin's views, but its only
conception of moral obligation is that it is self-imposed; it
denies that moral obligation is or can be imposed by a legis-
lator. 1 It is true that if the legislator wished to impose a
strict and perfect obligation by positive law, the subject would
be bound under sin to conform to it, but the English legis-
lature cannot be said to do this, as the common opinion in
the country, on one ground or another, is that a moral obliga-
tion under pain of sin is not imposed by positive law.
5. The effect of voiding laws in English jurisprudence seems
to be not to invalidate an act or a contract which is otherwise
valid, but to empower the party concerned to annul it if he
choose to take advantage of the law. Unless the party con-
cerned move in the matter, the act struck at by a voiding law
will remain valid. This seems to be the view which lawyers
take of the effect of such laws ; it is in keeping, too, with a very
prevalent theological opinion concerning the nature of voiding
laws in modern jurisprudence. 2
SECTION VI
On Privileges
i. A privilege is, as it were, a private law which grants a
special favour to some person.
It is a law, because although as a general rule no one is
bound to use a privilege, since what is granted as a favour
1 T. H. Green, Lectures on the Principles of Political Obligation,
2 Encyclopedia of the Laws of England, s.v. "Null and Void,"
VARIOUS SPECIES OF LAW 81
should not become a burden and a restriction to liberty, yet
it lays on all the obligation of respecting the privilege, and of
doing nothing contrary to it. Moreover, those privileges
which are granted not to individuals, but to bodies of men
like clerics and religious, cannot be dispensed with or used
at the good pleasure of members of the privileged bodies.
Individuals cannot renounce the privileges of their order, but
they are bound to act in accordance with them.
2. A privilege is against the law if it derogates from the
law in favour of the privileged person ; it is beside the law if
there be no law from which it derogates.
The lawgiver to whom the law is subject can alone grant a
privilege against the law, and within the territory subject to
his jurisdiction. Within that territory all, whether subjects
or strangers, may enjoy the privilege,; no one may enjoy it
outside the territory of the grantor, unless it be in the nature
of a personal dispensation from the law. A privilege which
is against no law may be granted to anyone.
A personal privilege is directly and immediately granted
to a physical or moral person; a real privilege is granted
directly and immediately to a place, office, dignity, or thing,
and mediately to persons with respect to the place, office,
dignity, or thing.
3. Privileges are to be interpreted according to the terms in
which they are granted. And thus if a privilege is granted
by the Pope to a confessor by which he may absolve from
cases reserved to the Holy See, he cannot thereby absolve
from specially reserved cases, much less from the cases
most specially reserved to the Holy See, and which can only
be absolved by faculties specially .delegated by the Holy See.
Privileges granted to corporate bodies, such as Religious
Orders, inasmuch as they are rewards for services rendered
to the Church, and are for the common good, admit a wide
and favourable interpretation. Even privileges granted to
individuals, if they cause no prejudice to others, such as leave
to eat meat on days of abstinence, receive a wide interpretation.
Personal privileges, however, which benefit the privileged
while curtailing the rights of others, as exemption from paying
tithes, are regarded as a wound inflicted on the law which
should be equally observed by all, and so they receive a strict
interpretation.
4. Although privileges are in general granted in perpetuity,
yet they cease in many ways : by revocation of the competent
superior, by renunciation accepted by the competent superior,
i. 6
82 ON LAW
by such change in circumstances that in the judgement of the
superior they have become harmful ; a personal privilege is
extinguished by the death of the privileged person, real privi-
leges cease by the total destruction of the thing or place, but
the latter revive if the place be restored within fifty years ;
they cease also by the lapse of the time or the completion of
the number of cases for which the privilege was given (Can.
72-77).
5. On the privileges of the clergy see the Code of Canon
Law, Canon 118 ff.
6. Religious Orders have at different times received very
ample privileges from the Holy See, so as to enable them to
work for God and the Church with the greater freedom and
fruit according to their Institute. These privileges are
granted immediately to the religious superiors, and are by
them communicated as occasion requires to their subjects.
The regular or mendicant Orders, who take solemn vows, are
exempt from the jurisdiction of the Ordinaries, and subjected
immediately to the Holy See. Exemption, however, and
many other privileges of religious have been largely curtailed,
especially since the time of the Council of Trent, and now,
as far as their work among the faithful is concerned, and their
public conduct, regulars are to a great extent subject to the
authority and correction of the Ordinary.
BOOK IV
ON SIN
PART I
ON SIN IN GENERAL
CHAPTER I
THE NATURE OF SIN
r. A SIN is nothing but a bad human' act, and it may be defined
as a free transgression of the law of God. For a bad human
act is a disturbance of right order either because in itself it is
against right reason, as murder or suicide, or because it is
against the command of a legitimate superior, which imposes
a strict obligation, and which right reason bids us obey. But
such a disturbance of right order is against the law of God.
Every voluntary act against right reason is an offence against
God and a sin, for although the sinner in committing sin
does not always think explicitly of God, yet he always appre-
hends that he is doing a wrong action, an action which his
conscience condemns, and in the condemnation of conscience
is implicitly contained the condemnation of God himself.
A sin must be distinguished from an imperfection, which is
either negative or positive. A negative imperfection is merely
the omission of a good action which is not of precept; and
such an omission when grace moves one to perform the act,
though not a sin, yet is a falling short of the perfection which
was within one's reach. A positive imperfection is a violation
of God's will made known to us, but which does not strictly
oblige us. God wishes a religious to observe his rule, but
frequently this does not bind under sin. A positive imper-
fection, then, is a falling short not only of the perfection
which was offered to us and which we might have had, but
also of that which God wished us to have, though he did not
oblige us to have it.
2. Sin in the sense defined is called actual sin; habitual sin
is the state which follows the commission of actual sin until
this be forgiven.
83
84 ON SIN
A formal sin is committed knowingly and wilfully; a material
sin is committed without knowledge or free consent.
Sin is said to be against God, our neighbour, or ourself,
as it is against some virtue which immediately regards God,
or our neighbour, or ourself. All sin is ultimately against
God.
Sins of ignorance are committed through culpable ignorance ;
sins of infirmity through passion or bad habit; sins of malice
with cool deliberation and forethought. The last, as is
obvious, are the least excusable.
A sin of commission is an act against a negative precept; a
sin of omission is the wilful neglect of a positive precept.
The meaning of the terms sins of thought, word, and deed,
is obvious.
3. To commit sin there must be actual advertence to the
malice of the action done, either when the action is performed,
or when the cause is put. This follows from what was said
above about human acts, which must be voluntary either in
themselves or at any rate in their cause. But no act is volun-
tary without previous knowledge and advertence. It is not
sufficient, then, for sin that a man could physically advert to
the wrongfulness of his action, and should have done so ; if there
was no advertence, either at the time of the action or when
its cause was put, there is no sin. However, advertence to
what is likely to follow when the cause is put is sufficient to
contract the malice of sin ; and so wrong done through wilful
negligence, or passion, or habit, or carelessness, is imputable
to the agent.
Advertence to an evil thought or motion does not con-
stitute sin without free consent of the will. The will consents
when it voluntarily accepts an evil suggestion presented by
the mind, and it is immaterial whether the evil originates in
the will, or whether the will accedes to evil when suggested
to it from without. For sin, then, there must be both ad-
vertence to the evil and free consent to it; a man who takes
another's money, thinking it to be his own, does not commit
theft, nor does the kleptomaniac who is powerless to refrain.
CHAPTER II j
THE GRAVITY OF SIN
i. WITH reference to the gravity of its malice, sin is divided
into mortal and venial. Holy Scripture teaches us that there
are certain sins which exclude from the kingdom of God, 1
and, on the other hand, that the just, even while they remain
just, frequently fall into slight faults. 2 The same truth is
taught by the Church. 3 There are, then, mortal and venial
sins.
The essence of mortal sin consists in turning aside from
God, our last end, and virtually placing our supreme happiness
in some created good. But our last end is the vital and
guiding principle of moral conduct, and to throw that aside
is to make complete shipwreck of the moral life. It is not
merely to wander out of the direct path, as is done by com-
mitting venial sin ; however much this is done, if the ship be
kept moving toward the port, it will come to harbour at last;
but if the ship be steered altogether away from the port, it
will never get there. By committing mortal sin, then, we turn
away from God, our last end ; we rob our souls of the sancti-
fying grace of God which is their life, and we incur liability
to eternal separation from God and punishment in hell. Venial
sin is indeed an offence against God, but it does not turn the
soul away from him, nor rob it of his sanctifying grace ; and
it is more easily pardoned than mortal sin.
2. Mortal sin is sin in the fullest and most complete sense;
it is an act of consummate wickedness. A bad act must have
three conditions in order to be mortally sinful :
(a) There must be full advertence to the grave malice of
the act. A child that has not yet attained the full use of
reason, a person half asleep, or half drunk, or half-witted,
cannot know and appreciate sufficiently the malice of mortal
sin, and so cannot commit it. It is not, however, necessary
to reflect explicitly on God; or on the grave wickedness con-
tained in the act in order to sin mortally. It will be sufficient
if one who has the full use of reason consciously does what
1 i Cor. vi 9. 2 Prov. xxiv 16; Jas. iii 2.
3 Trent, sess. 14, c. 5.
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86 ON SIN
he knows to be seriously wrong, although there is no actual
weighing of motives for doing or avoiding the act, no actual
thought of God, no explicit calling to mind of the terrible
consequences of mortal sin. Men who never think of God
from morning till night, men who do not believe in hell,
certainly commit mortal sins when they do what their con-
sciences tell them is seriously wrong. Their conscience, as
we saw above, is the voice of God.
(Z>) Besides advertence of the mind to the malice of the
act, there must be full and free consent of the will to do it.
If a man does not give full consent, but only dallies with the
temptation, there is venial but not mortal sin; if, through
being only half conscious or partially deranged, he has not full
control over his will, he cannot be guilty of mortal sin.
After a temptation to sin is over, the conscience is some-
times uncertain and troubled as to whether full consent was
given to sin. Often one may form one's conscience on the
point by reflecting whether he was fully awake or conscious
of what he was doing, whether the sinful act to which tempta-
tion impelled him was executed if there was the opportunity
of doing so. If doubt remains, it should be settled by pre-
sumptions drawn from what usually happens. If he usually
yields to such temptations, the presumption is that he did
so on this doubtful occasion ; the presumption is in his favour
if he does not usually yield consent.
(c) The object or the matter to which consent is given must
be seriously against the moral law in order that a sin may
be mortal.
The matter is serious as a rule when the sin committed is
directly against our duty to God, as blasphemy, heresy, hatred
of God, idolatry, despair of God's mercy.
The matter is also serious when the sin causes great harm
to our neighbour, as do sins against justice, charity, and
obedience.
When sins cause great harm to the sinner himself the
matter will also be serious and the sins mortal. This is the
case with sins of intemperance and lust.
3. Some grievous sins are always mortal if there be full
advertence and consent in the act. They do not admit parvity
of matter, as theologians say. On the other hand, some sins,
which if the matter be serious are mortal, become venial when
the matter is light; sins against justice and charity are of this
kind. It is a mortal sin to steal ten pounds, it is a venial sin
to steal a penny. Some sins are of their nature venial, and
THE GRAVITY OF SIN 87
only become mortal when they contract some special malice
from the circumstances. Fidelity to a simple promise binds
under pain of venial sin, but when the promise is bilateral
and the matter serious, as in espousals, it binds under grave
sin and in justice.
4. From what has been said about mortal sin, it will be
clear that a sin will be venial if anyone of the three conditions
required for mortal sin be wanting.
5. Mortal sin may in certain circumstances become venial,
and, on the contrary, venial sin may become mortal. The
following paragraphs will make this clear :
(a) Mortal sin may become venial on account of an erroneous
conscience which wrongly judges a grave sin to be only venial.
(6) The same may happen on account of imperfect ad-
vertence or imperfect consent to an act which in itself is
gravely sinful. '
On the other hand, a venial sin may become mortal :
(a) On account of an erroneous conscience which falsely
judges a venial sin to be mortal.
(b) On account of a gravely sinful intention with which
a venial sin is committed, as when a lie is told in order to
commit adultery.
(c) On account of the proximate danger to which one is
exposed of committing grave sin, as when one reads a slightly
indecent book, but foreseeing that it will be the proximate
occasion of grave sin.
(d) On account of grave scandal caused by venial sin.
(e) When light matter coalesces and becomes grave by
additions, as when one who is bound to fast frequently in the
day takes small quantities of food, which are notable in the
aggregate I r when a considerable amount of money is stolen
in small thefts.
Although no mere multiplication of venial sins can ever
amount to a mortal sin, yet venial sin frequently committed
disposes the soul to commit mortal sin both directly and
indirectly. Directly, by forming a habit which becomes
stronger and stronger, continually requiring greater indulgence
for its satisfaction, and finally leads to mortal sin. This is
often seen in such sins as theft and lust. Indirectly, because
venial sin familiarizes the soul with wrongdoing, lessens the
fear of God in the soul, diminishes the fervour of charity, and
causes God to withhold those more abundant graces which
he would otherwise give, and which would preserve the soul
from sin, but without which the soul falls grievously.
88 ON SIN
6. To deliberate whether we shall commit mortal sin or
not, weighing the reasons on either side, is itself a grievous
sin. It is against the precept of charity, by which we are
obliged ever to cling unswervingly to God; it is a grievous
injury to God, as if a subject were seriously to deliberate
whether he should or should not be faithful to his king and
country.
7. In this chapter we have for the most part kept in view
the objective malice of sin. As a rule, the confessor should
judge of sins confessed according to the objective malice, but
he will, of course, bear in mind that the subjective malice of
sin may be very different from the objective. The subjective
malice of sin will depend upon the degree of instruction and
knowledge, the graces which the sinner had received, the
violence of the temptation to which he was subjected, whether
he was influenced by habit, perhaps unconsciously formed,
or whether he was the subject of hereditary tendency, and
many other considerations. It is obvious that the question
of subjective malice must be generally left to the infinite
knowledge of God, who alone sees and penetrates the inmost
recesses of the heart.
CHAPTER III
ON DIFFERENT SPECIES OF SINS
i . THE Council of Trent teaches 1 that all Catholics are bound
by divine law to confess to a priest all the mortal sins into
which they may have fallen after baptism. A confession of
sin in general terms will not suffice, but as far as is possible
the confession must be integral that is, each and every mortal
sin must be confessed according to number and species. The
confessor, then, must know when this duty is sufficiently
fulfilled, or he must know how to distinguish the different
species of sin. To enable him to do this, theologians have
formulated three rules, of which sometimes one, sometimes
another, is more serviceable for determining the species of
any particular sin.
2. RULE I Sins differ specifically according as their formal
object differs. This rule is merely an application of the
universal principle that acts are specified by their formal
objects. Sins are bad human acts, and so, as we saw when
treating of human acts, their formal object gives them their
specific moral quality. The formal, not the material, object
specifies the sin that is, the object, inasmuch as it is morally
wrong, causes the will which tends to it to be a vicious will
in a certain definite way. And so adultery is a specifically
different sin from fornication, because in the former case right
order is doubly violated in a way that does not belong to
fornication.
3. RULE II Sins are specifically different according as they
are opposed to specifically different virtues. The reason of
this rule is fundamentally the same as that of the former, for
virtues are specifically distinguished according to their acts,
and acts are specifically distinguished according to their
formal objects. And so, inasmuch as charity is a different
virtue from justice, hatred, as being opposed to charity, is a
specifically distinct sin from theft or detraction, which are
against justice.
4. RULE III Those sins are specifically distinct which are
transgressions of formally distinct laws.
1 Trent, sess. 14, c. 5.
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90 ON SIN
Laws, however, are formally distinct not because they are
made by different authorities ; the same sin of theft is against
the natural, divine, ecclesiastical, and civil law. But when
the motives of two laws are different, and the legislators wished
to impose on their subjects the obligation of the special motive
which they had in view, the laws will be specifically different,
and sins against them will be specifically distinct. Thus the
Church commands her children to abstain from flesh meat
on Fridays, in order to exercise themselves in the virtue of
temperance by curbing their appetite; she forbids anyone to
receive Holy Communion who has not been fasting from
midnight, out of reverence to the Blessed Sacrament; these
two laws, then, are formally different laws, and violations of
them are specifically distinct sins. Sometimes the Church,
in forbidding an action, does not choose to clothe her precept
with the obligation of the motive which induced her to make
the law, and then violations of the law will be simply sins of
disobedience. Thus bad books are frequently forbidden with
a view to safeguarding the faith, but one who reads such
books unlawfully does not thereby and necessarily sin against
the faith.
CHAPTER IV
THE NUMERICAL DISTINCTION OF SINS
i . IF a man steals five pounds from A on one day, and another
five pounds from B the day after, he commits two distinct
sins of theft. There is no difficulty about such cases. But
how many sins does a man commit who, with the intention
of seducing a woman, begins with bad talk, immodest looks
and touches, and finally attains his end ? Or how many sins
are committed by one who is almost all day long occupied
with bad desires, which are, however, interrupted by his taking
his meals and by other occupations ? Or how many sins does
he commit who sets fire to a building where a dozen people
were asleep who all perished in the flames ? In order to
decide as far as possible such difficult questions as these, and
enable penitents to confess the number of their sins according
to the divine precept, theologians have drawn up the follow-
ing rules :
2. RULE I There are as many sins as there are total objects
in sinful actions. By total object is meant an object of the
will which either in itself or by the intention of the agent
forms a complete whole, and is not referred to another action
as a part of the whole. Thus the theft of a sum of money is
a complete whole in itself, and forms a total object of the will.
Immodest touches may form a complete whole if the intention
be restricted to them without an idea of going farther ; but if
immodest touches are intended as a means to commit further
sin, they form one complete whole with the subsequent sin,
and make one sin with it.
The reason of the rule is clear from what has been said
before. The object specifies the act, and if there be one whole
object from a moral point of view, there will be one complete
moral action and one sin.
3. RULE II There are as many sins as there are moral
interruptions in the sinful act. We say " moral interruptions "
because the laws for confession are to be understood according
to the common estimation of ordinary men, not according to
the subtle distinctions of the philosopher. And so, if common
sense tells us that on account of some interruption in the course
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93 ON SIN
of a bad desire, there are two human [acts, and not |one con-
tinuous action, there will be two sins and not one. However,
the main difficulty in this question is to decide what moral
interruption is sufficient and necessary to break the moral
continuity in an action and to multiply the sin.
It is clear that if a person gives up his sinful design, and
then returns to it again, there will be a break of continuity, and
two distinct sins. Moreover, without explicitly relinquishing
his evil design, there may be such an interruption in entertaining
it that when it is taken up again there will be a new action
and a distinct sin. The interval which is necessary for such
an interruption will vary according to the nature of the act
and the circumstances.
(a) In merely internal sins of thought, any complete cessa-
tion from the bad thought would seem to be sufficient to
interrupt the moral continuity of the action and to multiply
the sin. However, if the interval is short, and the thoughts
proceed from the same impulse of passion, or one depends
on another and issues from it, the moral unity will not be
broken, and there will be only one sin.
(b) A determinate purpose to commit an external sin
murder, for example is not multiplied by ordinary inter-
ruptions demanded by sleep, meals, or daily occupations.
Such a purpose, persevered in for a week or so, would con-
stitute only one sin. The same would hold for a longer period
if the purpose were renewed at short intervals, and never
retracted. If, however, it were not renewed within a short
interval, mere lapse of time would eventually cause the purpose
to evaporate and cease to exist, so that renewal of the purpose
after a considerable interval would constitute a new and
distinct sin.
It is very difficult to define precisely what interval of time
would be required to break the moral continuity of the act.
Much depends upon circumstances; a longer interval would
be required when the act was not renewed through forgetful-
ness, or because no occasion of renewal presented itself; a
shorter would suffice if the ceasing to entertain the sinful
purpose were voluntary. No better rule can be given than
that the question of time must be left to the judgement of a
prudent man.
(c) If the purpose to commit sin is from time to time ex-
ternalized by the taking of some means to the end in view,
the act remains one and the same for a long interval of time,
and such a purpose entertained for months and years under
THE NUMERICAL DISTINCTION OF SINS 93
those circumstances would constitute only one sin. Similarly
a purpose persevered in for years not to pay a debt that is
owing constitutes only one sin, though, of course, it is more
grievous the longer it is entertained.
4. It is a disputed point among theologians whether a sinful
act which is directed to many distinct objects is only one or
many sins. An example will illustrate the difficulty. If an
anarchist throws a bomb into a crowd of people and kills a
score of them, does he commit a score of distinct sins of murder
which must be mentioned in confession if he goes to con-
fession, or does he commit only one big sin, whose malice
indeed equals twenty, but which is adequately confessed by
saying, " I killed a number of people by throwing a bomb " ?
It will not suffice to say, " I committed homicide," for that
would mean the taking of one life only, which was not precisely
what was done.
In this controverted question it would seem better to dis-
tinguish, and say that if the objects were capable of being
grouped together and actually were conceived as one object
by the mind, there was one act and one sin. If, however,
the criminal distinctly thought of the several objects and
intended to kill each and all, there will be as many sins as
there are distinct objects. A priest who, when starting for
a fortnight's holiday, intends to omit his breviary during the
whole time, commits one big sin ; but if he executes his design,
he commits a new sin every day that he neglects his duty,
for the Office of each day forms one total object, and the precept
of saying the divine Office is virtually multiple, and falls on
each and every day.
5. If the means used to commit a sin are themselves evil and
of the same species as the sin, and if they can be regarded as
parts of one total object, as, for example, immodest talk and
touches with a view to fornication, such means need not be dis-
tinctly confessed, as we saw above. If, however, the evil means
are of a different species from the sinful end, as, for example,
lying in order to commit a theft, the evil means are a separate
sin, and must be distinctly confessed. If the means used to
commit a sin are not in themselves sinful, they need not be
confessed, unless the end was not attained, and in that case
it will be sufficient to express in general terms in confession
the use of means to give effect to a sinful purpose, by saying,
for example, " I tried to commit theft," if the intending thief
merely entered a house, but failed to effect his design.
PART II
ON CERTAIN KINDS OF SINS
CHAPTER I
ON SINS OF THOUGHT
i. THERE are as many kinds of bad thoughts as there are
different kinds of sin, but for the purpose of this chapter they
are commonly reduced by theologians to two kinds: bad
desires and morose pleasure in evil imaginations. Desire,
therefore, is here understood in a wide sense and comprises
a longing, a wish, purpose, or intention of doing something
wrong. Morose pleasure is voluntary joy, delight, and satis-
faction in an evil imagination, and what is said about it is
also applicable to voluntary sadness and sorrow on account
of something good, which should cause the opposite sentiments.
Desires are efficacious when there is the intention of taking
the necessary means to obtain what is desired; they are in-
efficacious or conditional when this is not the case.
2. An efficacious desire of doing what is wrong is a sin of
the same kind as the external action would be; it contracts
the malice of the object and of all the circumstances of the
object. The reason is plain. The external action in the
concrete with all its circumstances is the object to which the
will tends in forming an efficacious desire; and as an act is
specified by its object, the evil desire belongs to the same
species of sin to which the external act would belong when
performed in the circumstances contemplated.
The same must be said of inefficacious or conditional desires,
unless the condition takes away all the malice of the act, as
it frequently may do. There is no harm, for example, in
saying, " I should like to eat meat on a Friday, unless the
Church forbade it "; and the same is true generally whenever
the condition, "if it were lawful," is annexed to a merely
positive prohibition. If this condition is annexed to a- desire
against the natural law, as " I should like to steal if it were
lawful," or " I should like to commit fornication if it were
not forbidden," the condition does not remove all the malice
of the vicious will, for the very tendency of the will toward
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ON SINS OF THOUGHT 95
such objects is against right reason. Such conditional desires,
then, are sinful, unless they indicate a mere propensity towards
such sins without any voluntary affection of the will. In any
case, however, they are dangerous, and should not be indulged
or expressed.
3. Morose pleasure in the imagination of what is evil is
what ordinary Catholics mean by a bad thought in the restricted
sense. It is sinful when voluntary, for it is an approbation,
a satisfaction in what is wrong ; it is an act of the will which
is specified by a bad object, and so it derives its special character
and malice from the object. To take pleasure, then, in the
thought of revenge, is a different sin from taking pleasure in
the thought of adultery.
There is a difference, however, between the source of the
malice of evil desires and of morose pleasures. We have seen
that evil desires contract all the malice of the object and of its
circumstances. Morose pleasure, too, contracts the malice
of its object and of any circumstance which is a motive of the
pleasure, but not of other circumstances which may belong
to the object in the concrete. For the will in morose pleasure
tends to the object not as it exists in the concrete with all its
circumstances, but as it is represented in the imagination,
and precisely in so far as the object thus represented allures
the appetite. Morose pleasure, then, takes its malice from
the object, but not from all the circumstances of the object.
Taking pleasure in an evil imagination must be distin-
guished from taking pleasure in the thought of sin. It is not
sinful to take pleasure in thinking about pride, for example,
and trying to penetrate its malice. Knowledge naturally
gives pleasure and in itself is not sinful. But it is dangerous
to think about some sins, about sins of lust or revenge, for
example, and on account of the danger it is wrong to think
about sins of the flesh without good reason. Thinking about
such sins with good and sufficient reason is not sinful, for
the danger of sin is not sin, and it may be neglected for suffi-
cient cause; if there is not sufficient reason and the danger
of consent is small, it will be a venial sin; if the danger of
consent be proximate and the matter grave, the sin will be
mortal.
4. Morose pleasure in certain definite sins of one's past
life has for its object the sins as they were actually committed
with all their circumstances, and so it will be infected with
all the malice of the circumstances. Morose pleasure in past
sins is thus similar in its malice to evil desires, and on this
96 ON SIN
account obtains the special name of " joy " in theology. A
penitent who has been guilty of this sin should say what sins
they were whose remembrance gave him pleasure.
5. Those who are not yet married and those who have been
married may not take pleasure in the thought of what is
allowed to married people, for in practice such pleasure can-
not be confined to the intellect; it also excites the sensual
appetite and this causes temptation and sin.
6. It is not sinful to take pleasure in a good result which
followed from some evil, as, for example, in the good results
of a war or of a revolution. We may lawfully rejoice in the
death of someone who was causing great harm to public
morality, or to the public good in general, not precisely because
he is dead, but for the reason that the cause of public harm
is removed. We prefer the public good to the good of the
individual, especially if he is doing harm. In this connection
mention may be made of certain propositions condemned by
Innocent XI, of which the following is a specimen: "It is
lawful for a son to rejoice that he killed his father in a drunken
fit on account of the great wealth to which he has thereby
succeeded." It is obvious that such joy is morally wrong,
for the act of parricide was at any rate materially wrong even
when committed while drunk, and joy on account of what
was, and is, wrong is unlawful; nor does succession to the
father's wealth, a good of a lower order than human life,
especially a father's life, furnish a just cause for such unfilial
rejoicing.
7. As it is unlawful to take pleasure in evil, so it is sinful
to entertain voluntary sadness on account of good. To be
sorry, therefore, for what is good and matter of precept is a
mortal or a venial sin according as the precept binds under
mortal or venial sin ; and so a reprobate sins grievously who
laments the years that he spent in leading a virtuous life.
Even though the good be not matter of precept, as, for example,
the vows of religion, it is irrational and at least venially sinful
to be sorry for having taken them; it will be grievously sinful
if it leads to the danger of transgressing them.
On the questioning of penitents concerning bad thoughts,
see Genicot, i, n. 175.
CHAPTER II
THE CAPITAL VICES
THEOLOGIANS divide the chief vices to which human nature is
subject into seven heads or capital sins, as they are called.
The name implies that they are the source and origin of inany
more, inasmuch as the inordinate love of any temporal good
is apt to give rise to many inordinate ways of pursuing it.
The seven capital sins are : Pride, Covetousness, Lust, Anger,
Envy, Sloth, Gluttony.
On Pride
i. Pride is the inordinate love of our own pre-eminence.
There is a tendency deeply seated in human nature, which arises
from the self-love which is innate in every man, and which
leads him to prefer himself to others, to wish to lord it over
them, and to bear with impatience the yoke of subjection to
authority. Truth requires that we should look upon any
qualities and gifts that we possess as coming to us from the
bounty and goodness of God, and as giving us no right to exalt
ourselves above others who have received similar or even
greater benefits from the generosity of our common Father.
Pride, on the contrary, would willingly close its eyes to this
salutary and humbling truth; it looks upon whatever it pos-
sesses as its own, as the fruit of its own labour and merit ; it
is prone to magnify its gifts, and to consider them to be greater
than they really are, while on the other hand it is blind to
the good qualities of others. This leads to the growth of a
spirit of independence which is impatient of subjection to
any authority, human or divine, and to a depreciation and
contempt of others. The proud man has no need to ask
God for anything ; he thanks him that he is not as the rest of
men; he is self-sufficient and independent of all the world.
This is the pinnacle of pride, the inordinate love of one's own
pre-eminence.
Consummate pride, which refuses to be subject to God and
to lawful authority, and which looks down upon other men
i. 97 7
98 ON SIN
with profound contempt, is a mortal sin. If it does not go to
these lengths, but merely magnifies self without grave in-
subordination and contempt of others, it is a venial sin.
Pride is so serious an evil because it strikes at the root of
the primary obligations of reverent obedience towards our
Lord God and love of our neighbour, because it is opposed to
the truth, and because of its universality ; it is in the heart of
every man and quickly grows to fearful dimensions unless
corrected and subdued.
2. To pride is opposed humility, the virtue which occupies
the mean between the two extremes of pride and pusillanimity
or mean-spiritedness. The mean-spirited man refuses to take
the place for which his talents fit him, and which God intends
for him. He puts himself beneath his equals and inferiors
to the detriment of his dignity and office ; he is afraid to exercise
the authority entrusted to him, and the public good suffers
in consequence. Humility, on the other hand, keeps a man
in his place both with respect to God and his fellow-men. It
is grounded on the knowledge of God and of self; the humble
man knows and acknowledges that he has nothing but what
he has received from God, that he is utterly and entirely
dependent on God every moment of his life, that if left to
himself he will fall into the lowest depths of sin and degrada-
tion; and this knowledge causes him to think much of God
and little, very little, of self. This is the virtue so much recom-
mended by our divine Lord: " Learn of me, because I am
meek and humble of heart." 1
Pride leads to many other vices, among which are: pre-
sumption, ambition, vainglory, boasting, and hypocrisy.
(a) Presumption is the inclination and wish to undertake
what is above one's capacity. Ordinarily it is a venial sin, but
it will be mortal if it is the occasion of serious harm to the
cause of God or our neighbour.
(b) Ambition is the inordinate striving after dignities and
honours. The inordinateness consists in striving after honours
to which one has no just claim or greater than one's due, or
by unlawful modes and means, or with too great eagerness.
Apart from such inordinateness it is not sinful to seek after
honours and dignities, as these belong to the class of things
that are in themselves indifferent; it is a meritorious act to
seek with moderation after dignities and honours in order
thereby to be able to do more for God and one's fellow-men.
" If a man desire the office of a bishop, he desireth a good
1 Matt, xi 29.
THE CAPITAL VICES 99
work." 1 Such an act belongs to the virtue of magnanimity.
Ambition is commonly a venial sin, but it becomes mortal
when it is the cause of serious harm, or when the means em-
ployed to attain its. end are grievously sinful.
(c) Vainglory is the inordinate striving after the esteem and
praise of men. It is not wrong but praiseworthy to seek after
and preserve a good reputation, which, as Holy Scripture
teaches, is better than great riches. 2 But inordinateness,
vanity, and sin come in when the esteem and praise of those
men is sought whose esteem is not worth having, or when
esteem is sought for what does not deserve esteem, or not
so great as is sought after, or when glory is not referred to
the proper end. It is usually a venial sin, but may become
mortal in the same way as ambition.
(d) Boasting is the inordinate bragging about one's own
good qualities or gifts, or even about what is sinful. If the
inordinate display is in action rather than in word it is called
ostentation.
(e) Hypocrisy is the feigning of virtues and qualities that
one does not possess.
On Covetousness
i. Covetousness or avarice is the inordinate love of wealth.
It is not sinful to value and seek after money in moderation,
but the love of money becomes inordinate when it causes a
man to be too close and niggardly in spending it, too eager
and absorbed in acquiring it, and ready to do what is wrong
in order to come at it.
It is of itself a venial sin, but it becomes mortal when it
leads to the transgression of a precept which binds under
grievous sin. Although it is of itself only a venial sin, yet
it is very dangerous because of man's proneness to it, and
because the vice is apt to grow fast by what it feeds upon,
until it becomes mortally sinful. Holy Scripture frequently
condemns it and warns us against it. 3
z. Covetousness is opposed to liberality by defect, while
prodigality is opposed to liberality by excess. Liberality is
the virtue which moderates the love of wealth and inclines us
to spend it well, according to the dictates of right reason.
Prodigality inclines a man to squander his wealth on unworthy
1 i Tim. iii i. 2 Prov. xxii i.
3 i Tim. vi 9, etc.
ioo ON SIN
objects, or to give more than he should do, so that he is not
able to live according to his state of life, or he is unable to
fulfil his obligations, or he reduces his family to beggary.
On Lust
Lust is an inordinate appetite for the pleasure which has
its seat in the organs of generation. A wise and provident
Creator has taken care that those actions which are most
necessary for the individual or for society should be accom-
panied by great pleasure in order that they may be exercised
more certainly and more readily. If there were no pleasure
connected with eating and drinking, few men would trouble
themselves about those necessary actions. The great pleasure
felt in the act of procreation induces men to do what is neces-
sary for the preservation of the race which otherwise would
excite only shame and disgust. This, however, can only be
done lawfully in wedlock. It is lawful then, according to the
rules of married life, for husband and wife to indulge in venereal
pleasure ; outside marriage it is inordinate and sinful.
Any act of wrongful indulgence in venereal pleasure by
those who are not married is grievously sinful if directly sought
for or to which deliberate consent is given. But the fuller
treatment of this subject must be left till we come to the
Sixth and Ninth Commandments.
On Anger
i. Anger is the inordinate appetite for revenge.
Revenge is the infliction of pain in satisfaction for an injury.
As private individuals we are not allowed to avenge injuries
which have been done us: " To no man rendering evil for
evil. . . . Not revenging yourselves, my dearly beloved, but
give place unto wrath, for it is written : Revenge to me ; I will
repay, saith the Lord," 1 Sometimes, however, in trivial
matters the immediate punishment of an injury is allowed to
private persons, in order to prevent a recurrence of the in-
justice, or under circumstances in which such an action is
really an act of self-defence. In other cases private revenge
is not allowed, but belongs to those whose duty it is to correct
1 Rom. xii 17.
THE CAPITAL VICES 101
delinquents and to avenge outraged justice. Anger, then,
will be inordinate whenever revenge is sought without just
cause, or more severe than the cause requires, or when private
vengeance is indulged in, or when it is sought merely to satisfy
hatred and spite. In these cases anger is of itself a grave sin
because it is against justice and charity; if there be merely
want of moderation in the manner of seeking or executing
lawful vengeance, the sin will be venial.
2. To be angry in moderation for a just cause is not sinful:
" Be angry, and sin not." 1 Sin may even be committed
through defect of anger, as when a parent or superior is never
moved to anger against the faults of children or subjects, but
permits them to go unpunished to their loss and the public
inconvenience.
3. The daughters of anger, or the sins which spring from
the same root, are indignation and he swelling of passion,
blasphemy, imprecation, quarrelling, and contumely ; fighting,
sedition, striking, and wounding; which are for the most part
treated of in other chapters, or present no difficulty.
Contumely is an insulting word or gesture said or done in
order to dishonour our neighbour. It is against charity, and
of itself is a mortal sin except when the matter is trivial. A
superior may, however, with moderation and caution treat a
subject contumeliously, not in order to dishonour him, but
to correct or humble him. Chaffing another about his foibles
for the sake of recreation is not sinful unless it goes too far
and provokes to anger or cuts too deep.
On Envy
Envy is sadness on account of another's good, inasmuch as
it is regarded as lessening one's own. It is directly opposed
to charity, which inclines us to rejoice in the good of our
neighbour, and is mortally sinful if the matter is serious. We
must carefully distinguish envy from various other disposi-
tions which bear some resemblance to it. Thus, if one is
sorry because another has obtained something desirable, thereby
making it impossible for himself to obtain it, it is not envy
but emulation, which in itself is praiseworthy. Sadness
because another has obtained a post of influence of which he
is unworthy, is not envy nor sinful. In the same way, if one
1 Eph. iv 2,6.
102 ON SIN
is sad because his enemy has obtained the means of doing
him harm, there is no sin in such a disposition. Envy
comes in where an equal, or one who is not much more
than an equal, rises in position, power, or influence, and his
rise is regarded with ill will because it seems to lower one's
self.
The ambitious are usually also envious, inasmuch as they
see others enjoying what they wish to have for themselves.
The mean-spirited, too, are commonly envious, since they
look upon trivialities as matters of great importance, and the
promotion of others, especially of the young, as a lowering
of themselves.
6
On Sloth
Spiritual sloth is a sluggishness of the soul in the exercise
of virtue. If the reason for the sluggishness is the labour and
difficulty which accompany the practice of virtue, sloth will
be a mortal sin whenever on account of it a grave precept
is violated; otherwise it will be a venial sin. If sloth makes
the friendship of God tedious and irksome because of the
trouble it takes to preserve it, it is a mortal sin, inasmuch as
it is directly against our obligation of loving God with our
whole heart.
On Gluttony
1. Gluttony is the inordinate indulgence in food or drink.
The use of food and drink should be regulated by temperance
according to right reason. As a standard right reason will
be guided by the necessities of bodily health and strength,
interpreted in a wide sense, and the uses of the society in
which one lives. Inordinateness will come in if through
appetite we anticipate the proper time for taking refreshment,
or demand too exquisite dishes, or indulge in excess, or devour
our food voraciously, or require too great care in the prepara-
tion of food, paying a chef as much as all the other servants
put together.
2. Gluttony is of itself a venial sin, but it becomes mortal
if it leads to violating precepts, such as those of fasting and
abstinence, which bind under grave sin, or if it seriously injures
health, or if it makes a man unfit to pursue his ordinary avoca-
THE CAPITAL VICES 103
tibns, or if eating and drinking become the end for which a
man lives, whose God is his belly, 1 or if it causes complete
loss of reason through drunkenness.
3. Complete drunkenness which deprives a man of the use
of reason, so that he cannot distinguish between what is right
and wrong, is a mortal sin, for St Paul numbers it among those
vices which exclude from the kingdom of God. 2 The malice
of this sin does not consist merely in the depriving one's self
of the use of reason, for it is allowed to do that for a good
cause, but in the depriving one's self of the use of reason in
such an unnatural way by the inordinate use of drink for a
considerable time during which the recovery of the use of
reason is out of one's power, and without any just cause.
Theologians more commonly teach that if there were a sufficient
cause, it would not be morally wrong to make a man drunk
as a substitute for the use of chloroform, or in order to counter-
act the effect of poison.
To drink to excess but not so as to be perfectly drunk is
only a venial sin per se, but it may become mortal on account
of the serious harm done thereby to one's own health, or the
spending in drink of money which is required for the support
of one's family or the payment of one's creditors, or on account
of grave scandal caused by such a sin, or on account of other
sins to which it gives rise.
4. If a man could be prevented from committing a more
serious sin, as murder, for example, in no other way except by
making him drunk, many theologians teach that this would
not be unlawful. For very probably I may induce another
who is determined to commit some grave crime to be content
with doing something which is less bad. Under such cir-
cumstances, to persuade another to do what is a less evil is
a good action. 3
5. Bad actions committed in drink are imputable to the
agent if they were foreseen in some confused way, for they
are voluntary in their cause. The same must be said of
blasphemy, indecent language, and other sins of word which
retain their objective malice even when said by a drunken
man. Mere abuse of others, inasmuch as nobody cares what
a drunken man says, would not be sinful. However, when
sins in word are committed in drink, there is something wanting
to them for their full and proper signification, and so, if
blasphemy, for example, were punished by ecclesiastical censure
1 Phil, iii 19. 2 Gal. v zi.
3 St Alphonsus, 2, n. 57.
104 ON SIN
or reservation, these would not be incurred for blasphemy
uttered while drunk.
6. Morphia may be given to ease pain, and brandy to
strengthen a sick person, even though they cause loss of
reason. This follows from what has been said and from the
principle of a double effect. It is not lawful to administer
such medicines in order to deprive a dying man of the use of
reason, so that he may die while unconscious. The time just
before death is very precious ; a sinner may then be reconciled
with God and save his soul; one who is in the state of grace
may very much increase his merit by a good use of that time.
Euthanasia then, in this sense, is unlawful; it is virtually
shortening a man's life.
7. The terrible evil of drink should be combated by all
the means, spiritual and temporal, which are at the disposal
of the Christian. The general means which may be used are
especially the frequent reception of the sacraments, the
avoiding of dangerous companions and the occasions of sin,
the cultivation of modes of taking innocent recreation while
not at work either at home or outside, the joining of Catholic
temperance societies whose members encourage each other
by mutual example, and the taking of the pledge if its nature
and obligations be properly understood.
BOOK V
ON THE THEOLOGICAL VIRTUES
FAITH, hope, and charity are called theological virtues because
they relate immediately to God, having God for their material
and formal object. They thus hold the first place among
the Christian virtues ; they are of the greatest importance, are
most meritorious; and sins against them are the most grievous.
In moral theology the acts belonging to these virtues and the
sins opposed to them are treated of; the treatment of the
virtues is reserved to dogmatic theology.
PART I
ON FAITH
CHAPTER I
THE NECESSITY OF FAITH
i . FAITH is here understood in the sense in which it is used
by the author of the Epistle to the Hebrews 1 and elsewhere
in Holy Scripture. It is an act of the intellect assenting to the
truth of a proposition, not because it is evident to reason, but
because its truth is vouched for by someone who knows and
whom we can trust. The word has this sense among others
in English. We say: " I should not like to pin my faith to
such a proposition on that writer's authority." Here there
is question of human faith resting on human authority. God
can manifest the truth to us, and we believe that he has done
so. " God, who at sundry times and in divers manners, spoke
in times past to the fathers by the prophets, last of all in these
days hath. spoken to us by his Son." Whatever God makes
known to us mediately or immediately we are justified in
believing on his authority. He can neither deceive us nor be
himself deceived; and we are bound to believe all that we
know God to have spoken or revealed, otherwise we implicitly
1 Heb. xi.
105
106 ON THE THEOLOGICAL VIRTUES
accuse God of lying or of ignorance. An act of divine faith,
then, is an act by which we believe whatever God has revealed
on the authority of God himself. God has taken care that
we should know for certain what he has revealed in times past
for man's benefit and guidance by founding the Catholic
Church. The Catholic Church is the pillar and the ground
of truth, whose chief function it is to bear witness to God's
revelation, and to teach it to all men even to the consummation
of the world. God's Holy Spirit, the Spirit of Truth, ever
abides with the Church, to enable her faithfully and infallibly
to perform her task. Faith, then, considered as a habit, is
a theological virtue by which we believe all that God has
revealed and the Church proposes to our belief on the authority
of God himself. An act of faith is an act of this virtue.
2. God has destined us for a supernatural end of eternal
happiness, consisting essentially of the beatific vision of
himself, as we know from revelation ; he wishes that we should,
as rational and free beings, work consciously for the
attainment of that end. We cannot do this without believing
in God and without believing that he is a rewarder of those
who do well and a punisher of those who do ill ; faith, then,
is the necessary foundation of the Christian life. " Without
faith it is impossible to please God. For he that cometh to
God must believe that he is, and is a rewarder of them that
seek him."
Faith is, then, necessary for salvation, not merely because it
is of precept like the Commandments, but because it is a
necessary means to attain the supernatural end to which we
are destined by God. Without taking the necessary means
the end cannot be attained. Those, then, who have come to
the use of reason, so that they can know God and know what
he has revealed, are bound to make an act of faith; otherwise
they cannot be saved. The habit of faith is infused into the
soul together with sanctifying grace at the reception of baptism,
and this habitual faith is sufficient for such as have not the
use of reason, like children or those who have always been
insane.
3. Our act of faith must implicitly extend to everything that
God has revealed; we cannot accept some articles on his
authority and reject others which are vouched for by the
same authority. But it is not sufficient to make an act of
implicit faith comprising all that God has revealed. We are
bound to know and believe certain revealed truths explicitly.
Some of these truths must be believed explicitly as a necessary
THE NECESSITY OF FAITH 107
means to salvation ; explicit belief in others is only of precept,
and the want of it, if inculpable, will not be a bar to salvation.
Explicit belief in the existence of God, the rewarder of them
that seek him, is necessary for salvation, and probably also
belief in the mysteries of the Blessed Trinity and the Incarna-
tion. Explicit belief in these mysteries is certainly of precept. 1
A Christian is bound also to know and believe the substance
of what is contained in the Creed, the sacraments which are
of obligation, the precepts of God and of the Church, and the
Lord's Prayer. It is sufficient to have implicit faith in other
truths of revelation.
4. It is not sufficient to have believed the necessary articles
of the faith once in a lifetime. Our acts of faith must be
frequently renewed ; we must lead lives of faith, according to
the divine precept. 2 This divine precept is sometimes of
obligation per se, as when the truths of revelation first become
known to a man and he becomes conscious of his obligation ;
sometimes it is of obligation per accident, as after a sin against
the faith has been committed, or when a duty has to be fulfilled
which requires an act of faith. However, for such as have
once made their act of faith, it will be sufficient in order to
fulfil the divine precept if the act of faith is renewed implicitly,
as is done whenever we pray, assist at Mass, or receive any
of the sacraments. It is well, however, especially in these
days of unbelief, to renew frequently explicit acts of faith
according to the wish and practice of the Church. They are
acts of very great merit with God.
1 Props. 22, 64, condemned by Innocent XI.
2 Props. 16, 17, condemned by Innocent XI.
CHAPTER II
THE EXTERNAL PROFESSION OF THE FAITH
i. WE do not fulfil our duty as Christians and Catholics if
we keep our religious faith concealed within our own breasts.
Our duty to God, to our neighbour, and to ourselves some-
times requires that we should make open profession of the
faith which we hold. When our public profession of the
faith would render great honour to God, or prevent great
dishonour being shown him, or prevent the true religion from
being publicly despised and contemned, we must, even at the
risk of great temporal loss, boldly come forward and proclaim
our religious belief. We must be ready to do the same if our
example would gain others to God or prevent them from
falling away from him; for charity towards our neighbour
sometimes requires that we should sacrifice our temporal
interests for the spiritual good of others. Again, if we never
made open profession of our faith, there would be grave
danger of its becoming weak and altogether dying away; so
we must sometimes perform external acts of our religion in
order to keep the faith alive within us. The necessity of
doing this is shown by the gradual falling away from their
religion of Catholics who have no priests, and no churches
wherein to practise their religious duties (Can. 1325, sec. i).
2. The positive law of the Church requires that a solemn
profession of faith be made by those who are about to be
baptized, or received into the Church, or at least in their
name if they are unable to make it for themselves. The
occasions and persons who are bound by canon law to make
profession of faith are laid down in Canons 1406-1408.
3. It is gravely sinful to deny the faith, or to do or say
anything which is equivalent to a denial of it, or which shows
that we are ashamed of it. " For he that shall be ashamed
of me and of my words, of him the Son of man shall be ashamed,
when he shall come in his majesty, and that of his Father,
and of the holy angels." 1 However, the obligation of pro-
fessing the faith is affirmative, and so always binds but not
for always. In other words, we may never deny the faith,
1 Luke ix 26.
1 08
THE EXTERNAL PROFESSION OF THE FAITH 109
but we are only bound to profess it openly when the divine,
or natural, or positive law require it. A man might travel
for months among heathen or heretics without making his
faith known to anyone. As a rule, it is better openly to profess
one's religion, so that all may know that we are Catholics;
but under certain circumstances it might be lawful to conceal
one's conversion to the faith for a time.
A Catholic who on being asked denies that he is one does
not necessarily deny the faith. Such an answer might merely
be a fitting reply to an impertinent question. It will, however,
be a denial of the faith when the circumstances require that
an open profession of it should be made. A Catholic who
flies from persecution, or disguises himself, or eats meat on
days of abstinence in order to avoid detection, does not thereby
deny the faith. It is better never to enter non- Catholic places
of worship, or be present at non- Catholic religious functions,
and this is of obligation whenever such acts would be inter-
preted as countenancing a false religion, or as showing a spirit
of indifferentism, or whenever there would be scandal or
danger of perversion, or whenever lawful authority forbids
them. Otherwise, merely to enter an heretical place of
worship, or to be present at a non- Catholic religious function,
such as a burial or a marriage, without taking part in the
ceremony, is not sinful, [and may be permitted for a good
cause (Can. 1258).
4. All communication with non- Catholics in their religious
rites and ceremonies is as a rule forbidden to Catholics. To
take part in such rites and ceremonies is to take part in a form
of religious worship which is not approved by God and by
the Church ; it is a virtual adhesion to a false form of worship,
or it shows approbation of it. A Catholic, then, may not act
as a sponsor in a non- Catholic baptism, or take an active part
in a non- Catholic marriage or funeral. On certain rare
occasions, as when in danger of death and a Catholic priest
cannot be had, a Catholic may accept the ministrations of a
schismatic or heretical priest, as was done by some Catholic
Japanese officers who were captured by the Russians and shot
in the Russo-Japanese War.
Inasmuch as heretics and schismatics are excommunicated,
the Church forbids prayers, suffrages, or Masses to be publicly
offered for them (Can. 2262).
5. Experience shows that very little good and much harm
may come from disputes and controversies about religion.
Ordinarily such disputes leave the parties concerned more
no ON THE THEOLOGICAL VIRTUES
obstinate than ever in their convictions. Grave scandal, too,
and great dishonour to God result from the public and con-
temptuous denials of sacred truths and the ridicule thrown
on them in the heat of controversy. The mind of the Church
is that, as far as possible, and except for the necessary defence
of the faith, such disputes should be avoided whether they be
public or private (Can. 1325, sec. 3).
CHAPTER III
SINS AGAINST FAITH
THE chief sins against faith are infidelity, heresy, and apostasy.
1. All who have sufficient knowledge of the Gospel are
bound to embrace and believe it: " He that believeth and is
baptized shall be saved; but he that believeth not shall be
condemned." 1 A grave sin, then, is committed by one who
rejects the faith when it has been sufficiently made known
to him with adequate grounds for believing, and this grave
sin is called infidelity. This positive infidelity is distinguished
from privative and negative infidelity. One who has the
opportunity of knowing the faith, and recognizes the obliga-
tion of making inquiries about it, but neglects to do so, com-
mits the sin of privative infidelity. This is also a grave sin
if the degree of negligence be grave. One who has no oppor-
tunity of learning the faith, or who does not advert to the
obligation of making inquiries, is in negative infidelity. This
is not sinful, but St Thomas 2 teaches that it is the penalty of
sin, inasmuch as if a man were faithful to the light that he
has in natural reason, God would take care that he should
have an opportunity of knowing the faith even if it were
necessary to send him a special messenger, or an angel from
heaven, to make the Gospel known to him. If, then, the
Gospel is not preached to every man, not God but men are
to be blamed for it.
2. Heresy is the rejection by one who has embraced the
faith of some portion of revealed truth which is proposed by
the Church for our belief. If the rejection is voluntary and
accompanied with full knowledge that what is rejected is
proposed by the Church as an article of faith, the heresy is
formal. Otherwise it will only be material.
It is not heresy, though sinful, to reject what is known to
have been revealed by God in a private revelation; private
revelations are not proposed by the Church for our belief.
Nor is it heresy, but disobedience, to reject what is proposed
by the infallible authority of the Church for our acceptance,
but which forms no part of divine revelation. One who
1 Mark xvi i. 2 De Verit., q. 14, a. n, ad I.
in
ii2 ON THE THEOLOGICAL VIRTUES
denied that a canonized saint is in heaven would not be a
heretic, but he would be disobedient to the Church, who
assures us with divine authority that he is in heaven, and bids
us honour him as a saint. Formal heresy is committed not
only by knowingly and wilfully rejecting a revealed truth
which is proposed for our belief by the Church, but by wilfully
doubting about such a revealed truth. For such a one posi-
tively doubts whether a portion of God's revelation is true,
and thereby injures him as much as if he asserted that it was
untrue. Similarly one who would not submit to the Church's
decision, even if she defined some doctrine to be of faith, is
a formal heretic. Negative doubt, by which assent to a
revealed truth is withheld or suspended, and voluntary ignor-
ance of the true Church or of other necessary truths of faith,
are sinful, but they do not constitute formal heresy. Great
numbers of baptized Christians who were born of schismatical
and heretical parents, and who do not know the true Church,
are material, not formal heretics. When they begin to doubt
about their position, and advert to the obligation they are
under of making inquiries, they sin against the faith, more or
less grievously according to their negligence, if they remain
as they are. They do not become formal heretics until the
truth fully dawns upon them, or they are so disposed that
they would not submit to the Church even if they knew that
she alone is the true Church of Christ.
3. Heresy is punished by the Church as a crime which
attacks the foundations and the very raison d'etre of her exist-
ence. In order to incur the penalties inflicted on heresy, the
sin must be both formal and external, for the Church in her
external forum does not take cognizance of sins of thought.
The external act must be such as of its own nature, or from
custom, or from the special circumstances, is held sufficient to
manifest an heretical mind. The reception of the sacrament
in an Anglican church, or being married in a non- Catholic
place of worship by a non- Catholic minister, are considered
acts of heresy and punished as such by excommunication.
A special form for the reception of converts into the Church,
based on various Roman decrees, has been approved by the
English Bishops.
4. Apostasy from the faith is the grave sin committed by
one who throws the faith overboard entirely. The apostate
not only rejects special dogmas like the heretic, but wholly
abandons the Catholic faith, and becomes a free-thinker,
atheist, materialist, Mohammedan, Buddhist, etc.
PART II
ON HOPE
CHAPTER I
THE NATURE OF HOPE
i . AN act of hope is an act of the will by which we 'desire the
possession of God and of heaven, and firmly trust that we
shall obtain them together with the necessary means through
the goodness of God and God's fidelity to his promises. The
material object, then, of hope is God, Ijieaven, and the super-
natural helps necessary to attain thereto. The formal object
is God's infinite goodness towards us, his omnipotence, and
his faithfulness to his promises. God is infinitely good and
wishes us to be happy with him for ever ; he has promised that
we shall be happy with him if only we persevere to the end.
He will enable us to do this by his all-powerful grace.
2. Hope is necessary for salvation for all who have come to
the use of reason. The sinner must hope in order to ask for
pardon and to be able to rise from his sin. The just man
must hope, otherwise he will not pray, and without prayer it
is impossible to persevere in the grace of God. Hope is also
matter of precept, which obliges sometimes per se, at other
times per accident, in much the same way as the precept of
faith. Explicit acts of hope, however, are not necessary in
order to fulfil this precept ; what was said above about the acts
of faith is applicable to acts of hope. Implicit acts contained
in prayer, the reception of the sacraments, and other works
of piety are sufficient to fulfil the obligation. Nobody, then,
who is complying with the ordinary obligations of a Christian
life need be anxious whether he is fulfilling the precept of
eliciting acts of the theological virtues ; but it is well, as a matter
of counsel, to renew them frequently and explicitly.
3 . The chief sins against hope are despair, presumption, and
aversion for God and heavenly things.
Despair is a voluntary diffidence about obtaining heaven and
the means necessary thereto. If it arises from mistrust of the
goodness, power, and fidelity of God, it is gravely injurious
to him, and is always mortally sinful. In an improper sense,
i. 113 8
n 4 ON THE THEOLOGICAL VIRTUES
despair. sometimes springs from an overpowering idea of one's
own weakness and fickleness, and then it is frequently only
venially sinful; it is not directly against hope, but rather a
failure to make use of the motives to encouragement which
hope furnishes.
Presumption here signifies a sin against hope by excess, and
is an inordinate confidence in the attainment of heaven without
using the necessary means. It is of itself a grave sin, but
admits of parvity of matter, as when through such inordinate
confidence one commits venial sin.
Aversion for God and heaven is distinguished from hatred
of God, which is directly against charity, in that it does not
wish evil to God, but prefers earth and earthly joys to God
and heaven. It is, as is obvious, a mortal sin.
PART III
ON CHARITY
CHAPTER I
THE NATURE OF CHARITY
i . CHARITY, as treated of here, is an act of the will by which
we love God for his own sake above all things, and our neigh-
bour for the sake of God. The love of charity, then, is
different from the love of concupiscence, by which we love
God as our reward exceeding great, and desire to possess him
in whom our supreme and perfect happiness is placed. This
love of concupiscence is good and belongs to the virtue of
hope, but it is imperfect. By charity we rise above the con-
sideration of our own reward and happiness; we see in God
the infinite Good, the Source and Origin of all good, and we
rejoice in his infinite Perfection. We wish him all honour
and glory and every good, and desire, as far as we can, to
obtain it for him, because he is infinitely worthy of our whole-
hearted devotion. So that the formal object of charity, the
reason why we love God, is his own infinite goodness and
worth; for this reason we love him and our neighbour, for
such is his will. He has made us all in his image and likeness ;
all rational creatures form the great family of God, our common
Father ; all are capable by grace of eternal happiness with him
in heaven.
2. The most intimate union with God by charity is the end
for which we were created, and it is our duty to prepare our-
selves for this high destiny by exercising ourselves in charity
while on earth. It is the highest and the noblest of virtues,
the queen of all the virtues, the seal and bond of human
perfection. That we might cultivate charity all the more
assiduously God has commanded it in express terms: " Thou
shalt love the Lord thy God with thy whole heart, and with
thy whole soul, and with thy whole mind. This is the greatest
and the first commandment. And the second is like to this:
Thou shalt love thy neighbour as thyself." 1 We are bound,
1 Matt, xxii 37.
"5
n6 ON THE THEOLOGICAL VIRTUES
then, to love God above all other things, to cling to him, come
what may, never to allow ourselves to be separated from him
by sin, for: " He that hath my commandments and keepeth
them, he it is that loveth me." 1 If we do this, we need have
no scruples about our charity; even though we seem to have
a tenderer feeling for husband, child, or friend than for God,
we may call to mind that charity belongs essentially to the will ;
if our will is firmly fixed on God, so that we are prepared to
suffer the loss of anything rather than of God, we substan-
tially fulfil the greatest of the precepts, on which the law and
the prophets hang.
All rational beings that are capable of friendship with God,
and of becoming his children by grace, are to be loved for the
sake of God in charity. This love of charity towards our
fellow- men does not exclude love for them as friends or relatives.
Love of others for any honest motive is good and praiseworthy,
and may by being supernaturalized become supernaturally
meritorious with God. By the precept of charity towards our
neighbour we are bound to wish well to all, to pray for all,
never to allow ourselves any thought, word, or deed which is
incompatible with mutual love, and we are bound to help
others in their necessities as far as we can.
3. As charity is the queen of all the virtues, it binds of itself
under pain of grave sin, but when the matter is light the sin
will be only venial. Sins, then, against charity are grievous of
themselves, as we shall see while treating of them separately.
We are bound sometimes to elicit acts of charity, but, as
we have already seen, it is very difficult to determine exactly
how frequently. Nor is it necessary to attempt the task, for
implicit acts such as are contained in a devout recital of the
Our Father, sorrow because God is continually being offended,
by sin, pious meditation on the Passion of Christ, suffice for
the fulfilment of the obligation. We must not suppose that
it is difficult to love God with the love of charity, for God has
commanded it, and his infinite love towards us and the desire
he has of being loved by us in return prompt him to give us
abundant grace to enable us to comply with his precept. By
becoming bone of our bone and flesh of our flesh in Jesus
Christ, God has made it especially easy for us to love him,
inasmuch as it is easy for us to understand and to appreciate
the infinite tenderness and loveliness of the Sacred Heart of
Jesus. It is of such great merit that an act of perfect charity
at once blots out all sin and reconciles the sinner with God.
1 John xiv 21.
CHAPTER II
WELL-ORDERED CHARITY
i. THE law of charity is not fulfilled by a general and equal
esteem for all mankind. Such a vague and general regard for
others would probably he inoperative, and charity is above
all things active. Charity, then, to be genuine must be well
ordered and discriminating. It must look at the claims which
others have on our charity; it must appreciate things at their
true value, otherwise in wishing to confer a favour it will do
harm to the object of love ; it must assist others wisely accord-
ing to their necessity, otherwise it will foster hypocrisy and
produce professional and able-bodied beggars. In other
words, as theologians teach, the order of charity has reference
to the persons who claim our love, to the advantages which we
desire to procure for them, and to the necessity in which they
are placed.
2. God, the fountain and reason of charity, the infinite
source of all good, has the first and highest claim on our love.
" He that loveth father or mother more than me is not worthy
of me ; and he that loveth son or daughter more than me is not
worthy of me." 1 Next to God we must love ourselves with
that genuine charity which makes one's own salvation the first
great duty of every man " For what doth it profit a man if
he gain the whole world, and suffer the loss of his own soul ?" 2
We are never justified, then, in committing the slightest sin
for the love of anyone or anything whatsoever.
Neither must we without good cause expose ourselves to the
proximate occasions of sin. If duty demands it and if proper
precautions be taken, we may confidently trust in the pro-
tection of God, and expose ourselves to risk for the sake of
our neighbour. We may, too, forego a small spiritual ad-
vantage which is not matter of precept for the sake of our
neighbour. Moreover, we are sometimes called upon to
sacrifice our own good of a lower order for the higher good
of our neighbour. In this connection we may distinguish a
triple order of goods, those which pertain to the salvation of
the soul; the intrinsic and natural goods of soul and body,
1 Matt, x 37 2 Matt, xvi 26.
117
u8 ON THE THEOLOGICAL VIRTUES
consisting in life, health, knowledge, liberty, etc. ; and extrinsic
goods consisting in reputation, wealth, etc. Theologians also
distinguish three degrees of necessity in which one in need
of charity, spiritual or temporal, may be placed. If he is in
danger of damnation or of loss of life, or of other good of almost
equal importance, and can do nothing to help himself, he is
said to be in extreme necessity. If he is in similar danger
but can do something to help himself, though not without
grave difficulty, he is in grave necessity. Ordinary sinners
and beggars who can help themselves without grave difficulty
are in common necessity.
3. Every man, as far as he can, is bound to help his neigh-
bour in extreme spiritual necessity even at the cost of his
own life: " In this we have known the charity of God, because
he hath laid down his life for us; and we ought to lay down
our lives for the brethren." 1 However, we do not lie under
so serious an obligation unless the spiritual necessity of our
neighbour is certain, the prospect of our being able to render
effective help is equally certain, and no help is forthcoming from
elsewhere. Neither should we be bound to risk our lives in
order to help another in extreme spiritual need if greater
harm would follow from our making the attempt. So that it
is not often that ordinary people are bound to expose their
lives to fulfil this obligation of charity; the obligation more
frequently presses on Bishops and priests who have the cure of
souls, and who are bound to execute their charge in justice
as well as in charity. These are bound to expose their lives
for their flock not only in extreme but also in grave necessity.
Except in the case of extreme spiritual necessity, we are not
bound by the precept of charity to risk life or limb or expose
ourselves to any serious inconvenience. The reason is because
we are not bound to use extraordinary means and suffer serious
inconvenience in order to preserve our own lives, and we
cannot as a rule be bound to do more for our neighbour than
we are bound to do for ourselves, especially as in grave or
common necessity he can help himself. We might be obliged
to do more for one whose welfare was of public importance.
However, when our neighbour is in grave or even in common
necessity, we must be prepared to undergo some inconvenience
and trouble in order to help him. More precise rules on the
subject will be given below.
It is a disputed question among theologians whether one is
allowed to sacrifice his own life in order to save the life of
1 i John iii 16.
WELL-ORDERED CHARITY 119
another whose welfare is not of public importance. Many deny
that it is lawful, for we should love ourselves in the first place
when there is question of equal good ; charity begins at home.
Others, however, more probably teach that it may lawfully
be done, and that it is an act of heroic virtue ; so that in yielding
a plank to another in a shipwreck and permitting himself to be
drowned, a man does not prefer the life of another to his own,
but he sacrifices his life for the sake of virtue.
4. The more important spiritual goods of the soul should
be the first objects of our solicitude, then the intrinsic goods
of the soul and body, finally the extrinsic goods of reputation
and wealth.
With the love of complacency which inclines us to show
reverence, honour, and respect to others, we should give the
preference to those who are more worthy of it on account of
their closer union with God. The love of benevolence, on
the other hand, leads us to prefer those who are nearer to us
in sharing with them the goods which are specially due to
them on account of their union with us. Although no absolute
and universal rule can be laid down to guide us as to whom
the preference should be given when we cannot help all, yet
there is general agreement among theologians that the claims
of our neighbour rank somewhat in the following order : wife,
children, parents, brothers and sisters, other relatives, friends,
domestics, those Jwho live in the same place, country, and
finally all others.
CHAPTER III
LOVE OF ENEMIES
i. NOT even enemies and those who injure us are excluded
from the law of charity ; in spite of their ill will and malice they
remain our neighbours, and our Lord expressly bade us love
them: " I say to you: Love your enemies; do good to them
that hate you, and pray for them that persecute and calumniate
you." 1 We are bound by this precept to put out of our hearts
all ill feeling and desire of revenge against those who dislike
and wrong us, and furthermore we are bound to show them
those common marks of Christian charity which are due to all
and may be refused to none. What those common marks
of Christian charity are depends much on the usages of time
and place, and of the society to which the parties belong.
Those marks which are common to members of the same
family are not due to outsiders; those which are mutually
shown to neighbours of the same social standing are not due
to utter strangers or to persons in a lower social position.
Among the common signs of charity which may be refused to
none are reckoned the following: general prayer for all which
we offer up when we say the Our Father, answering a question
or returning a salute, selling in open market to all comers,
refraining from excluding individuals from general invitations
or general benefactions.
It is not of precept but of counsel to show one's enemies
unusual signs of forgiveness and charity. Such signs are to
pray expressly for an enemy in particular, to visit him, to
console him in affliction, to treat familiarly with him.
2. In certain circumstances, however, we are bound to
show even these unusual signs of charity to our enemy, as
when they cannot be refused without scandal to others who
will think that they are refused through hatred, or when they
are required to prevent our enemy from falling into serious
sin as, for example, by conceiving a deeper hatred for us. If
a former friend asks our pardon for an injury which he has
done us, and if the friendship was not a freely accepted union
between us, but was more or less required by our mutual
1 Matt, v 44.
1 20
LOVE OF ENEMIES 121
relations, we must be ready to show him again unusual signs
of charity. If the friendship depended merely on our mutual
liking, there will be no obligation to show unusual marks of
charity after receiving an offence; what was freely given may
be freely withheld, always supposing that there is no ill will.
We may for a time even refuse the common and ordinary
signs of charity toward another for a good reason. A superior,
for example, may do so in order to correct an inferior who
has offended him. An equal may do so for a time immediately
after receiving an offence while the injury is still rankling in
his heart ; to require not only repression of ill feeling, but the
immediate exhibition of marks of charity for the offender,
would be to lay too heavy a burden on poor human nature.
It may also be lawful to refuse the ordinary signs of charity
for a time toward one who has offended us in lighter matters
as a suitable punishment, and as a means of preventing a
repetition of such offences in future.
3. When one who has offended us apologizes and asks for
pardon we are bound to forgive him and also at the proper
time to show him the ordinary signs of charity. If, however,
he has injured us, we have a right to compensation for the
injustice, and charity does not compel us to forego our right.
We may then require satisfaction for the injury and even
bring an action in a court of law to recover it against the
wrongdoer, without, of course, indulging any ill will.
4. With a view to reconciliation between enemies, it is the
duty of him who gave the offence to apologize and to ask for
pardon, unless a position of superiority makes this inadvisable.
As a rule, it will not be necessary to make a formal request
for pardon; satisfaction can usually be given to the offended
party in a less formal way, and in a way that is less embarrassing
to both parties. If both were in the wrong, the one who was
most so, or the inferior, should be the first to seek recon-
ciliation.
5. We sometimes find it difficult to associate with certain
people; they try our temper; we can scarcely talk or think of
them with patience. This is sinful, of course, if it is volun-
tary, and if it arises from ill will towards the person in question.
It sometimes, however, comes not from ill will towards the
person, but from incompatibility of characters and dispositions.
We dislike in him some quality or mannerism, or something
which we cannot precisely define. It is what theologians call
the hatred of abomination, not of enmity, and it may be
without fault, as when it leads us to fly his company not in
122 ON THE THEOLOGICAL VIRTUES
order to wound his feelings, but to escape a trial of temper
and probable unpleasantness.
To refuse the ordinary signs of charity so as not to speak
to another, or to refuse to have anything to do with him out
of ill feeling, and to foster this for a considerable time, is of
itself a grave sin. But in estimating the gravity of such a sin
in practice, the cause and the strength of the ill feeling should
be considered. If the refusal to have anything to do with
another come from serious ill will, it will be a grievous sin ;
otherwise it may be only venial, or if there be no ill will and
a just cause, no sin at all.
CHAPTER IIV
ON ALMSGIVING
i. ALMSGIVING is here taken in a wide sense for any of the
corporal works of mercy by which our neighbour's necessity
is relieved. Inasmuch as the law of charity binds us to help
all who are in need as far as we can, almsgiving is obligatory
by the law of nature. The obligation is frequently inculcated
in Holy Scripture: " Defraud not the poor of alms," we read
in Ecclesiasticus. 1 Our Lord in severe terms enjoined on his
followers the exercise of the works of mercy. 2
2. In order to measure as precisely as possible the gravity
of the obligation of almsgiving, we must consider the necessity
in which our neighbour is placed and our ability to help him.
We are only bound to help those who are in real need; we
should be fostering idleness and hypocrisy, and squandering
on unworthy objects what is sorely needed by others, if we
distributed our alms to the unneedy.
Theologians commonly distinguish thre.e degrees of neces-
sity, as we saw in a former chapter. Extreme necessity is the
condition of one who from want is in danger of death or some
equally serious evil, and who can do nothing to help himself.
If in similar circumstances he can, though with difficulty, do
something to help himself, he is said to be in grave necessity.
Beggars and the indigent poor generally are in common
necessity. These distinctions cannot be applied with mathe-
matical accuracy; they are necessarily somewhat loose and
vague, but they represent real differences which, broadly
speaking, are capable of being appreciated without much
difficulty.
With regard to the ability of him who is called upon to
relieve the needy, theologians distinguish between what is
necessary to support the lives of a man and his family, what
is necessary to support one's position, and what remains over
and above and is superfluous.
3. Except in the case of extreme necessity, which in ordinary
circumstances is rare, there is no obligation to give alms out
of what is necessary either for the support of life or position.
1 Ecclus. iv i. 2 Matt, xxv 41.
123
134 ON THE THEOLOGICAL VIRTUES
Charity, as we have seen, begins at home, and it rather forbids
us to prefer the needs of outsiders to our own and to the needs
of our family. We are, as a general rule, only bound to give
alms out of our superfluity, " That which remaineth give
alms." 1 Some theologians maintain that this precept imposes
an obligation of giving all one's superfluous wealth to the
poor; but others hold that this is only of counsel, that the
precept is a general one directed to all the rich, and that it
will be fulfilled if each gives something of his superfluity so
that the necessities of the poor may be relieved by the common
contributions of all. How much must be given according to
this opinion depends upon circumstances, and is better left
to the judgement of a prudent man after due consideration of
all the circumstances of the case.
4. When our neighbour is in extreme or almost extreme
necessity we are under a grave obligation of helping him even
out of what is necessary to support our position in life, provided
that it can be done without impoverishing ourselves or being
compelled to give up our reasonable and justly acquired style
of living. We are not obliged to pay large sums of money
to ransom a captive from the hands of bandits, or to send a
sick pauper to the Riviera for the winter; we should not be
obliged to take such extraordinary means even to preserve
our own life.
5. We are also under a grave obligation, according to the
common teaching of divines, of helping the poor who are in
grave necessity out of our superfluity. It is difficult to recon-
cile the words of Holy Scripture with any more lenient doctrine
on this point. 2 However, we should be slow to decide that
in any particular case a rich man has sinned mortally by
refusing to help one in grave necessity. For although there
be a grave obligation occasionally to help the poor in serious
want, it cannot be concluded that a grave obligation binds
any one particular person to assist all such; that would be an
impossible burden. Furthermore, in practice it is frequently
difficult to decide when a man is in grave necessity, and whether
he will not be more conveniently helped by someone else.
Besides, there are not wanting theologians who teach a more
lenient doctrine as to the gravity of the obligation of assisting
those who are in grave need.
A rich man cannot be excused from sin who makes it a
practice never to give anything in alms on the plea that the
poor can go to the workhouse, and that he pays his poor rates.
1 Luke xi 41. 2 Matt, xxv 41 ; i John iii 17.
ON ALMSGIVING 125
For cases of grave and sometimes of extreme necessity arise
where it is practically impossible to seek relief in the work-
house ; and wherever there is a case of true necessity there is
an obligation to help as far as one can.
6. The rich are also under an obligation of sometimes
helping those who are in common necessity, for the texts of
Holy Scripture seem to refer to cases of ordinary need such
as are commonly met with, and if no one ever helped the poor,
their lot would soon become desperate. A man, therefore,
who makes it a rule never to give alms to ordinary beggars
certainly commits sin; he is not obliged to help all who apply,
but out of his superfluity he must help some. It is a disputed
point among theologians whether this obligation binds under
pain of mortal or venial sin only. The severer view is the
more common, but the milder is defended by many approved
authors, on the ground that the necessity of the common beggar
is tolerable, and is not so irksome as to impose on others a
grave obligation of helping him.
CHAPTER V
ON FRATERNAL CORRECTION
i. BY fraternal correction is meant a brotherly admonition
given out of charity to a sinner to induce him to amend his
ways. If such brotherly admonition is likely to do good and
have its effect in procuring the amendment of the delinquent,
charity requires that it should be given ; for if charity obliges
us to assist our neighbour when he is in temporal need, much
more does it oblige us to do what we can for one who is in
spiritual necessity. Our Lord, too, insisted on the fulfilment
of this duty: " But if thy brother shall offend against thee, go,
and rebuke him between thee and him alone. If he shall hear
thee thou shalt gain thy brother." 1 This obligation is of
itself grave, as it belongs to the grave precept of charity, and
like charity it binds all men. However, as we shall see, there
are several conditions to be fulfilled in order that this precept
may oblige in the concrete, and in practice private persons are
rarely compelled under grave sin to exercise fraternal correc-
tion. Bishops, parish priests, and others who have the cure
of souls, as well as parents, are more frequently obliged under
pain of mortal sin to admonish those committed to their charge.
2. Theologians enumerate the following conditions as
requisite in order that there may arise an obligation of giving
fraternal correction :
(a) It must be certain that a grave sin has been committed
and that the delinquent has not corrected and will not of himself
correct his fault. There is no general obligation to correct the
venial sins of anothe raccording to a very probable opinion ; in
religious communities, or in other circumstances where un-
corrected venial sin might lead to serious relaxation of discipline
or other harm, superiors are sometimes bound under grave
sin to correct venial faults, or even faults against the rule
which are not necessarily sinful. The grave sin must be
certain without the necessity of making inquiries, which would
be unwarrantable in a private person.
(b) If there is someone else who can and will give the neces-
sary admonition, the obligation will not rest upon me.
1 Matt, xviii 15.
126
ON FRATERNAL CORRECTION 127
(e) There must be a reasonable expectation that the ad-
monition will do good; there is no obligation to do what is
useless. Neither should it be given if it is doubtful whether
it will do good or harm.
(d) As charity does not bind with relatively serious incon-
venience to one's self, there will be no obligation to correct
another if this cannot be done without serious inconvenience.
This rule applies to such as are bound only out of charity to
correct others fraternally; Bishops and priests are bound to
do so also in justice, which obliges more strictly than does
charity.
3. Our Lord not only inculcated the duty of fraternal cor-
rection, 1 but he taught that in the first instance it was to be
done in private, then in the presence of witnesses, and finally
the delinquent was to be denounced to the public authorities
in order that public morality might be safeguarded and the
sinner more effectually corrected. This order should, of
course, be followed per se, for charity and justice demand that
our neighbour's secret fault should not be made known to
others except in special cases and for good cause. However,
cases are not infrequent in which it is lawful to denounce a
delinquent immediately to the superior without first attempting
to correct him fraternally. Such cases are the following :
(a) If the sin be public, the sinner's reputation is not injured
unjustly by at once informing the superior, which accordingly
may be done.
(b) If the paternal admonition of the superior will in all
likelihood be more sure and efficacious than the fraternal
correction of a private person, the superior may be immedi-
ately informed as a father, whose duty it is to correct his
children for their good, not as a judge, whose duty it is to
safeguard public interests by punishing crimes.
(c) If harm threatens the community from the action of the
delinquent, and it can only be effectually prevented by the
intervention of the superior's authority.
(d) If the delinquent be one of a religious community
whose members have voluntarily renounced their rights in this
matter, and agreed that anyone who becomes aware of their
faults may straightway inform the superior, such a one suffers
no injury if the rule be acted on. However, even in this case
there must be good reason for making the fault known to the
superior, such as the sinner's correction, the good name of
the community, the preservation of discipline. If the sin was
1 Matt, xviii 15.
128 ON THE THEOLOGICAL VIRTUES
committed in the past, and there is now no good reason for
making it known to the superior, it would be sinful to make
it known to him. Religious have a right to their reputation.
Sometimes members of communities, and boys or girls at
school, who know that serious harm to morals is being done
by a black sheep among the flock, are bound under penalty
of grave sin to give information to superiors so that the suitable
remedy may be applied. Such cases require careful treatment
from the confessor, who is bound to instruct his penitents
concerning their obligations, and to refuse them absolution if
they are not prepared to fulfil those obligations which bind
them under penalty of grave sin. On the other hand, the seal
of confession must be safeguarded at any cost.
4. It is the better opinion that private persons are not
regularly .obliged to admonish another for committing a
material sin through ignorance or inadvertence. Sometimes,
however, harm would follow even if material sin were to go
uncorrected and, inasmuch as charity requires that we should
prevent harm when we can, in these cases admonition should
be given. Those also who are placed in authority and have
the duty of instructing their subjects, preventing scandal, and
maintaining discipline, are bound to correct even the material
sins of those under their charge.
CHAPTER VI
ON SCANDAL
i. SCANDAL in its theological sense is any word or action
which has at least the appearance of evil and is the occa-
sion of sin to another. This is the received definition of
active scandal. Passive scandal is the sin which another is led
to commit through active scandal. It is quite immaterial
whether passive scandal be a sin of the same species as the
scandal which caused it or not; a priest who gets drunk may
cause scandal by inducing others to follow his example, or by
causing others to speak ill of priests or of the Catholic Church.
Scandal is direct when it is foreseen and intended. If it
is intended precisely in ord.er that another may fall into sin, it
is called diabolic ; if it is intended on account of the advantage
it will bring to him who gives it, it is simply direct scandal.
Indirect scandal is foreseen by him who gives it, but it is
not intended.
Scandal of the weak is caused by the ignorance or frailty
of him who suffers it ; pharisaic scandal is caused by his malice,
as was the case with the Pharisees taking scandal at the words
and actions of our Lord and his Apostles.
2. Giving scandal is of itself gravely sinful, as it is against
charity ; and it is a special sin against the precept of fraternal
correction which obliges us to do what we can to rescue a
fallen brother, whereas one who scandalizes his brother causes
him to fall. 1 Although of itself scandal is a grave sin, it is
frequently .only venial in the concrete. The gravity of the sin
is not measured by the malice of the sin which causes scandal,
but by the malice of the sin which he who gives scandal fore-
sees will certainly or at least probably be caused in another.
Thus a gravely sinful word or act may be a venial sin of scandal,
and a venially sinful word or act may be a grave sin of scandal.
It is plain, too, that not every sin committed in the sight of
others is a sin of scandal, but then only when it is foreseen
that at least probably it will cause others to commit sin.
3 . There is a twofold malice in sins of direct scandal ; such
sins are against charity and also against that special virtue
1 Cf, Matt, xviii 7.
i. 139 9
1 30 ON THE THEOLOGICAL VIRTUES
which he who suffers scandal violates. So that when A incites
B to drink to excess, A sins against charity and against tem-
perance, wjiich not only prescribes moderation in one's own
actions, but forbids one to be the cause of its violation by
another.
The question whether indirect scandal in the same manner
also contains a twofold malice is disputed among theologians.
The negative opinion is probable, for although the virtue of
temperance, for example, forbids me to induce another to sin
against it, and I violate temperance if I do so, yet temperance
does not require of me that I should prevent others from
sinning against it; I may sin against charity if I do not try
to prevent a sin of intemperance in another, but I do not sin
against temperance. And so when indirect scandal is given,
thereby causing another to drink to excess, there is a sin
against charity; but the sin of scandal does not contain in
addition the malice of a sin against temperance.
When A solicits B to commit sin with him and B consents,
both sin against charity and also against the virtue which is
specially violated; so that although solicitation causes A's sin
to be greater, it does not constitute a specific difference, and
need not be confessed.
4. If I foresee that scandal is likely to be caused by an action
of mine which has the appearance of being wrong, but which
in fact is perfectly lawful, I am under the obligation of re-
moving the danger of scandal by explaining my conduct, or
omitting the action altogether if I can do so conveniently.
If I cannot explain or omit the action without serious incon-
venience, I am justified in performing the action and per-
mitting the scandal, for charity does not bind to one's own
serious inconvenience.
5. On the other hand, I am not justified in omitting an action
which is prescribed by the natural or divine law on account
of the scandal which the action would give, and so when God's
honour or the salvation of my neighbour or my own requires
that I should make public profession of the faith, I am bound
to make it though my profession will make the enemies of the
faith blaspheme.
Even a positive precept does not cease to bind on account
of a general fear of scandal ; whether it ceases to bind or not
on account of scandal in a particular instance is a disputed
point. Some theologians maintain that if a woman knows
that her presence at Mass is a cause of grave sin to another
and she cannot hear Mass elsewhere, she is obliged to abstain
ON SCANDAL 131
from hearing Mass at least for a Sunday or two, because the
natural precept of avoiding scandal is more important than
the positive precept of hearing Mass on Sundays. Others, on
the contrary, hold that inasmuch as the scandal is taken and
not given, the obligation of hearing Mass does not cease to
bind in such a case. Practically, therefore, one is free to
follow either opinion. This disputed question refers to
scandal of the weak, for positive precepts do not cease to be
obligatory on account of pharisaic scandal.
A good action without any appearance of evil which is not
prescribed, and which can without inconvenience be omitted,
should be omitted when it would cause scandal. If it cannot
be abandoned without some inconvenience, there is no obliga-
tion to abstain from it; and so I may receive the sacraments
even when they are not obligatory from a priest whom I know
to be in a state of sin and unworthy to administer them.
6. If I suspect the honesty of a servant, I do nothing wrong
if I leave a sum of money where I know he will see it with
the object of finding out whether he will steal it. If he is an
honest man, no harm will follow; if he is a thief, my action
does not make him one ; I do but furnish the opportunity for
him to betray himself, and in my own defence I am justified
in doing that. It is of course morally wrong to use agents
provocateurs in order to detect criminals; they are the cause
of another's sin, not merely the occasion. >
7. If I know that someone has made up his mind to commit
sin and there is no other way of preventing him, I may lawfully
induce him to be satisfied with some less offence of God than
he was bent on committing. And so if a man was determined
to commit adultery, I do nothing morally wrong, but rather
the contrary, by persuading him to commit fornication instead.
Many theologians, indeed, deny this doctrine on the ground
that we must not do evil that good may come of it. But there
is no question here of doing evil one's self ; we are not justified
in doing a less moral evil instead of a greater ; we must abstain
from all evil, great and small. The question is whether it is
an evil action to persuade someone bent on committing a great
sin to be satisfied with a less. This is denied by those who
defend the above doctrine. And reasonably so, for it is a
good action to persuade another to do less evil than he was
bent upon doing. To lessen evil is surely to do good. This
is the more probable view, according to St Alphonsus. 1
1 Theol. Mor., a, n. 57.
CHAPTER VII
ON CO-OPERATION IN ANOTHER'S SIN
i. CLOSELY connected with scandal is the subject of co-opera-
tion or participation in the sin of another; indeed, they are
often treated of together, but on account of the importance of
the latter it seems desirable to devote a special chapter to it.
Co-operation, then, may be formal or material. Formal
co-operation is concurrence in the bad action of another and
in the bad intention with which it is performed. Material
co-operation is the concurrence in the external action of
another but not in the evil intention with which it is done.
Co-operation is proximate or remote according as the action
of the secondary agent is more closely connected with the
action of the principal agent or less so.
One is said to co-operate positively when he does something
which influences the action of the principal agent ; one is said
to co-operate negatively when he does not hinder a bad action
which he is bound to prevent.
2. It is never lawful to co-operate formally with another's
sin, for it is obviously to wish evil, which is always sinful.
Nor is it lawful to co-operate materially with the sin of
another when the action of the secondary agent is itself
wrong, as is also clear. But provided the action of the
secondary agent is not itself wrong, but right, or at least
indifferent, and he has no evil intention, and furthermore
there is a just cause for permitting the sin of the principal
agent, material co-operation in the sin of another is not wrong.
In such circumstances, the secondary agent does nothing that
is wrong in itself; he foresees, it is true, that another will take
advantage of his action in order to commit sin, but the
secondary agent is only bound to prevent this out of charity,
which does not bind with relatively serious inconvenience, and
this is present whenever there is a just cause for permitting
the sin of the principal agent. This is merely the application
of the principle of a double effect which was laid down in the
Book on Human Acts. 1
The cases to which this doctrine may be applied are very
1 St Alphonsus, lib. a, tract. 3, n. 63.
132
ON CO-OPERATION IN ANOTHER'S SIN 133
numerous, but the safe application is difficult and attended
with risk. The chief difficulty lies in determining the gravity
of the cause which will justify one in co-operating materially
in another's sin. No general rule can be laid down on the
point beyond saying that a graver cause is required when
there is question of a graver sin, when the co-operation is
more proximate, and when it is more probable that the sin
would not be committed at all if the co-operation were denied.
The following examples taken from approved authors are
given as illustrating the application of the doctrine, and they
may be used to show what may be done in similar cases.
(a) I may lawfully ask for the sacraments from a bad priest,
though he commits sin in administering them, for he need
not sin thereby unless he likes, and his malice should not
deprive me of the benefit of the sacraments to which I have
a right.
(b) A dealer may sell to all buyers things which are in them-
selves indifferent, though they can be put to a bad use, as
firearms, unless he is certain that they are required for a bad
purpose. Even in the latter case a correspondingly serious
inconvenience or loss will excuse his selling, especially if his
refusal will not hinder the sin on account of the buyer being
easily able to procure what he wants elsewhere.
(c) Intoxicating drink may not be sold to one who has
already had too much. Many authors, however, allow this
to be done when it cannot be refused without provoking to
violence and quarrelling. This excuse would rarely avail in
England at present, because the law forbids such sale, the
strong arm of the law thus being on the side of morality.
(d) It is not lawful to sell things of which the use is ordinarily
sinful, except when their lawful use is guaranteed. And so
booksellers are not allowed to sell infidel or immoral books
except to such as require them for good reasons and with the
requisite permission. The same doctrine applies to drugs
and instruments used for immoral purposes, as well as to
poisons. Publishers, too, sin by publishing books which are
dangerous to faith or morals. Compositors and others em-
ployed in printing should not work for firms which are known
to publish bad books ; as they are usually ignorant of the nature
of the work which they help to bring out, their ignorance, the
remoteness of their co-operation, and the ease with which
other workmen can be found to supply their place, will
ordinarily excuse them from sin if an odd bad book or two
are published by an otherwise respectable firm.
134 ON THE THEOLOGICAL VIRTUES
(e) Dancing may be a perfectly innocent amusement and
it may be a dangerous occasion of sin. No general rule, there-
fore, can be given as to when dancing must be avoided. Much
depends upon the company who join in the dance, upon the
way of dancing, and upon the subjective disposition of the
dancers. If there be nothing objectionable in any of these
respects, there is no reason why a young man or a young
woman should not be allowed to dance with due caution. If
there be ground for objection, and especially if sin has already
been frequently committed in similar circumstances, there is
an obligation to abstain, unless the occasion of sin is necessary
and can be made remote by taking proper precautions. If sin
only follows occasionally, there will be no strict obligation to
abstain from dancing, provided due precautions be taken in
future.
(/) The question of theatre-going is settled on similar
grounds. There are all sorts of theatres and all sorts of plays
represented in them, and all sorts of actors and actresses. To
go and listen to a bad and suggestive play arouses the passions,
leads to sin, and encourages evil in many ways. It will, then,
as a rule, be grievously sinful to go to the theatre to see such
a play. The confessor will usually be able to judge best
whether in any particular case it is lawful to go to the theatre
by asking whether in the past it has frequently led to sin. If
it has done so, it is a proximate occasion of sin, and must be
avoided as far as possible. In other cases, unless the play or
the theatre is known to be bad, there will be no strict obligation
to refrain from going.
BOOK VI
PRECEPTS OF THE DECALOGUE
PART I
THE FIRST COMMANDMENT
CHAPTER I
THE MATTER OF THE COMMANDMENT
THE great precepts of the natural law which binds all men
are summed up in the Ten Commandments given by God
to the Israelites, which our Lord i declared that he came
not to destroy but to fulfil. They bind all men, and they will
continue to do so as long as human nature is what it is; if
only they were observed, the blissful state of happiness of which
poets have dreamed, and reformers have striven in vain to bring
about, would indeed be realized on earth. The first three
Commandments lay down our duty toward God and constitute
the first table ; the rest, forming the second table, contain our
duties toward our neighbour and our self-regarding duties.
The First Commandment, in the words of Exodus, is: "I
am the Lord thy God . . . thou shalt not have strange gods
before me." 1
Here God solemnly declares to us that he is our Lord God
from whom we have all that we possess, on whom we depend
absolutely, to whom we altogether belong. From this, our
essential relation with God our Creator, is derived immediately
our duty to worship him as our first beginning and last end.
The fact that we derive our bodily origin under God from our
parents lays upon us certain obligations in their regard;
similarly, our relation to God imposes on us our highest duty
of worshipping God, our Creator.
The acts of this worship, which natural reason thus pre-
scribes, belong to the virtue which theologians call religion.
They are acts such as prayer, worship in the stricter sense,
sacrifice, offerings, tithes, vows, oaths, etc. Most of them
will be more suitably treated of elsewhere ; in this part we will
consider the subject of prayer and worship, and then the chief
sins against the virtue of religion.
1 Exod. xx 2, 3..
135
CHAPTER II
ON PRAYER
i. PRAYER sometimes means any pious affection by which
the mind and heart are raised to God. More strictly, it is the
petitioning of God for what we stand in need of, and this is
called the prayer of petition to distinguish it from the more
general signification of the term.
Mental prayer is made with the internal faculties of the
soul, while vocal prayer is made with the lips also.
Public prayer is offered in the name of the Church by
authorized ministers in forms approved by the Church; all
other is private prayer. Public worship is subject to the
authority of the Church, which has regulated it by a large body
of laws and decrees. Unauthorized forms of prayer may not
be used in public worship, and it has been prescribed that
only the litanies which are found in the Breviary and in the
more recent editions of the Ritual, or such as have been specially
approved by the Holy See, may be used in public. Moreover,
no litanies may be published even for private use without the
approbation of the Ordinary (Can. 1259).
2. For adults, prayer is a necessary means of obtaining
salvation; for there are certain graces necessary for salvation,
such as final perseverance, which God only grants in answer
to prayer, as St Augustine teaches. 1 Prayer is also of precept:
" We ought always to pray and not to faint." 2 This precept
is grave of itself, and for its fulfilment requires that we should
pray frequently. Beyond saying this, it is difficult to deter-
mine precisely what neglect of prayer is required for a mortal
or a venial sin. It would seem certain, however, that grave
sin would be committed by altogether neglecting prayer for
a whole year. The faithful rightly accuse themselves in
confession when they have omitted morning or night prayers,
for those times are the most suitable for fulfilling this duty,
and if no prayers are said then, they will hardly be said at
other times; moreover, the omission will usually be due to
sloth or carelessness about spiritual things.
3. Our Lord promised that prayer when rightly made
1 De bono persev., c. 16. 2 Luke xviii i.
136
ON PRAYER 13?
would be heard by God: " I say to you, Ask and it shall be
given you : seek and you shall find ; knock and it shall be opened
to you." 1 We learn from his teaching and from the nature of
prayer what qualities it must have in order to be acceptable
to God and heard by him. The object prayed for must be
necessary, or at any rate useful for salvation. Not only
spiritual blessings are proper objects of prayer but temporal
blessings as well, as far as they conduce to the welfare of the
soul. Prayer must be persevering : God has promised to hear
prayer, but he has not promised to hear it at once. The time
must be left to his wisdom and providence with due conformity
to his holy will. Prayer must come from a humble heart, in
which faith, hope, and charity dwell, in order to merit the
promises of God. Moreover, God will not do violence to
man's free will, and so if prayer is offered for someone else,
its effect to some extent depends on that person's dispositions
and free will. He may, if he pleases, put obstacles in the
way, which will prevent the prayer from obtaining the precise
effect wished for in his regard. Theologians conclude that
prayer must be made for one's self in order to be infallibly
heard by God.
4. We are obliged by precept only to pray to God, unless
we admit with the common opinion that anyone who should
never pray to the blessed Virgin Mary would sin venially by
neglecting so powerful a means of salvation. We may, how-
ever, lawfully and with fruit pray to the angels and saints,
more probably to the holy souls detained in purgatory, and in
private to anyone whom with reasonable certainty we believe
to be with God in heaven, that they may intercede with him
for us.
5. We should pray for all men whom it will benefit without
excluding anyone in our private prayers. It is useless praying
for the damned, and the Church forbids her ministers to pray
publicly for those who are excommunicated.
1 Luke xi 9.
CHAPTER III
ON WORSHIP
i. WORSHIP here signifies any external action by which we
show deference and respect to another. Such an act is
grounded on the persuasion that the person honoured is
worthy of our esteem, and that it is proper to mark our esteem
by such an external act of deference.
If the qualities which command our respect belong to the
sphere of civil life, our worship is civil ; if they belong to the
sphere of religion, it is religious worship. Religious worship
which is paid exclusively to God on account of his infinite
and uncreated excellence is called by divines latria. That
paid to the saints is called dulia, while the special worship with
which we honour the blessed Virgin Mary, the Mother of
God, on account of her created but pre-eminent excellence is
called hyperdulia.
Worship is absolute when the excellence which grounds our
esteem is in the object honoured; it is relative when paid to
some object on account of its connection with a person worthy
of our esteem and honour.
2. In this chapter we will briefly consider the regulations
of the Church with regard to the worship of the saints, their
relics and images, and the principles which underlie that
worship. We suppose the truth of the Catholic doctrine on
this subject that the worship which the Church authorizes
to be paid to the saints, to their relics and images is lawful,
praiseworthy, and meritorious. In the first place, then, we
are allowed privately to show that inferior worship, which is
called dulia, to anyone whom we know with moral certainty
to have died in the grace and friendship of God. We may
also show marks of relative worship to anything connected
with him during life. It is evident that there is nothing repre-
hensible in such worship; the world is accustomed to show
similar marks of its esteem to its great statesmen, generals, poets,
and inventors. The Church does not interfere with private
worship provided there is nothing in it that is objectionable.
3. Public worship, however, is subject to the authority of
the Church, and she regulates it both as to its manner and
138
ON WORSHIP 139
objects. No signs of public worship may be used besides
those which are sanctioned, nor may the accustomed and
approved signs of honour be shown to any except those who
have been canonized or at least beatified by the Holy See.
Only the saints, not the beatified, are invoked in the public
litanies, and ( ordinarily it is not lawful to erect churches or
altars in honour of the beatified ; this mark of honour is reserved
for the canonized saints. The pictures of the saints are
painted with aureoles, those of the beatified with rays. With
the permission of the Ordinary it is not forbidden to place
statues of men who have not been canonized or beatified in
our churches provided there be no marks of religious worship
shown them; and paintings of such men may, under the same
condition, be placed on the walls or windows of a church.
Such paintings, however, may not be placed over an altar.
4. The Church is very careful to guard against abuse and
fraud in the worship of the saints, their images and relics, as
is shown especially by the wise decree of the Council of Trent
on the invocation of the saints and the veneration paid to
their relics and images (sess. 25). In that decree it is specially
prescribed that no new relics or miracles are to be admitted
except with the Bishop's approbation after making a diligent
inquiry into the truth of the matter. The question of the
authenticity of relics is one of fact and proved by the ordinary
rules of evidence. When there seems to be moral certainty
of the genuineness of a relic, the Church permits relative
honour to be paid to it on account of the spiritual excellence
of the person with whom it was connected. The honour is
thus referred to the person of the saint and to God who is
glorified in all his saints. It is quite possible for mistakes to
be made about the genuineness of a relic; the infallibility of
the Church does not enter here. When a mistake is detected,
of course the honour previously paid to a false relic should
stop. No one need be scandalized or distressed when any
such discovery is made. The merit of the worship previously
paid in good faith is not lost; the saint whose relic it was
supposed to be was really honoured by marks of devotion
shown to it out of love for him. It is as if a devotee of Shake-
speare were to keep a bust in his room, and show it marks of
honour because he supposed it to represent the great poet ; if
he found out that it was a bust of Thomas Cromwell, he would
be disappointed, but neither he nor Shakespeare would have
suffered any great loss.
CHAPTER IV
ON SUPERSTITION
SINS may be committed against the virtue of religion by
excess or by defect in the same way as against other moral
virtues. Sins against religion by excess come under the
general term of superstition, of which there are several species.
For the sin of superstition may be committed by worshipping
the true God in the wrong way or by worshipping false gods.
We will first briefly treat of the wrong ways of worshipping
the true God, and afterwards of worship paid to false gods.
SECTION I
Wrong Ways of Worshipping God
1 . God may be wrongly worshipped either by false worship
or by superfluous worship being paid him. Worship of God
is false when its meaning is not in accordance with fact, or
when the falsehood is in the person who performs the act of
worship, as when a layman performs the duties of a priest, or
when someone tries to gain credence for false miracles or false
relics. The ceremonies and practices of the Jewish religion
signified that the Messiah was to come, and so now, after the
coming of our Lord, they could not be employed without
superstition. Inasmuch as falsehood in religion is a grave
injury to God, this species of superstition is mortally
sinful.
2. Anything in the worship of God which does not tend to
his honour and glory, or which is against the ordinances and
practice of the Church, to whom the regulation of religious
worship exclusively belongs, is superfluous worship and super-
stition. This sin is committed by attributing an infallible
effect to a fixed number of prayers or acts of piety, or to the
mere material wearing of scapulars or medals, or by unwar-
rantably acting against the rubrics while saying Mass or
administering the sacraments or sacramentals of the Church.
The intention of the Church is that scapulars, medals, and
other pious objects should be used by the faithful with con-
fidence in the goodness and power of God, whose aid is invoked
140
ON SUPERSTITION 141
on the wearers by the blessing of the Church. Ordinarily,
however, this kind of superstition will not be more than a
venial sin.
SECTION II
On Idolatry
The sin of superstition is also committed by giving divine
honour to false gods. This is done by idolatry, divination,
vain observance, and magic.
By material idolatry divine worship is given to a creature
through fear or for some other reason merely externally,
without any intention of honouring it as God. It is a grave
sin, for it is directly against the obligation of making external
profession of the faith, and contains the grave malice of a lie
in matters of religion. ;
Formal idolatry is perfect or imperfect. The former con-
sists in honouring a creature as God, falsely thinking it to be
God. The latter knowingly honours a creature as God,
without any excuse of ignorance, out of hatred towards him,
or wishing to obtain something thereby. Both are grievous
mortal sins, but the latter is the more grievous on account of
the greater knowledge and malice.
SECTION III
On Divination
i. We here suppose that the devil, a wicked spirit of great
intelligence and power, but subject to God, exists and con-
tinually interferes in the affairs of men in order to ruin them.
This truth belongs to the Catholic faith and cannot be denied
without sin. The sin of divination is committed when the
devil is invoked expressly or tacitly in order to discover what
is secret and hidden. There is express invocation of the devil
when his aid is expressly implored. The devil is tacitly
invoked when altogether inadequate means are used to find
out what is occult, means which are not sufficient for the
purpose naturally, and which have not been ordained by God
for that purpose. The devil is eager to be appealed to in order
the more easily to attain his own ends, and anyone who uses
such inadequate means to find out hidden secrets virtually
appeals to the devil to help him. A great variety of such
means of divination has been in use from the earliest times
among all nations ; and periods which have witnessed a decay
. 143 PRECEPTS OF THE DECALOGUE
of faith have also witnessed a recrudescence of these super-
stitions. The following are some of the better known methods
of divination practised from the earliest times. The devil
sometimes takes possession of the body of a human being and
manifests what is secret through it ; this was called pythonism.
The devil had his prophets as God had. In necromancy the
devil answers through the dead called to life again. At certain
places he gave oracles through idols. Sometimes he com-
municated with men through dreams. In all the foregoing
methods we have the express invocation of the devil. He is
tacitly invoked when the lines of the hand are consulted as
indications of the future, as is done in chiromancy; or the
course of the stars, as in astrology; or the flight or song of
birds, as in augury ; or some chance event is taken as foretelling
what is going to happen, as in omens.
2. Divination is mortally sinful, for it is a great insult to
God to hold intercourse with and seek aid from the devil, his
bitter enemy ; and, besides, it is most dangerous to the parties
concerned. He is wont gradually to insinuate himself until
he has his victim within his power, and then he works on him
his evil will. Such practices as those of divination are specially
declared to be hateful to God in Holy Scripture : " Neither let
there be found among you anyone that shall expiate his son
or daughter, making them to pass through the fire; or that
consulteth soothsayers, or observeth dreams and omens, neither
let there be any wizard, nor charmer, nor anyone that con-
sulteth pythonic spirits, or fortune-tellers, or that seeketh the
truth from the dead. For the Lord abhorreth all these things,
and for these abominations he will destroy them at thy
coming." 1 Although tacit as well as express divination is
grievously sinful of itself, yet it is frequently only venial on
account of the ignorance and simplicity of those who indulge
in it, or because they do not entirely believe that the future can
be known by such methods, and they use them in joke or out
of curiosity. In this way young people who consult gipsies
or palmists are ordinarily excused from grave sin.
3. We know from Holy Scripture that almighty God has
sometimes made known his will to men by means of dreams,
and the devil, too, is able to fill the mind with his suggestions
during sleep. If God in some rare instance uses dreams to
make known his will, he should of course be lovingly obeyed.
The suggestions of the devil, on the contrary, should be
repelled and despised. We can distinguish between the two
1 Deut. xviii 10-13.
ON SUPERSTITION 143
sources by observing whether the impulse received is towards
good or evil, whether what is suggested is worthy of God, whether
it tends to disturb our peace or leaves us tranquil and disposed
to the service of God. Dreams have ordinarily a natural
cause, but they are no indication of what the future will bring.
We may not, then, guide our conduct by dreams; God has
given us our reason and the Church to teach us what we
should do ; we must follow these anld not dreams if we would
act aright. Constantly to guide ourselves by dreams would
be mortally sinful, to allow them to influence us occasionally
and in matters of little moment would not be more than a
venial sin.
4. There is no harm in casting lots to decide a doubtful
claim; the parties merely agree to stand by what turns up by
chance. It is superstitious and sinful to cast lots in order to
discover some secret, or with a view to shaping one's life
according to the issue. Sometimes this method of deciding
doubts has been adopted by holy men in consequence of an
intimation received from God, or sometimes because no better
way out of the difficulty appeared.
The use of the divining-rod under the belief that a stick of
a special shape cut from a particular kind of tree or bush will
point out hidden treasure, or mines, or springs of water, is
superstitious and sinful. For it is certain that there is no
natural force which acts in the arbitrary manner in which the
divining-rod is said to act under the circumstances. It is not
impossible but that particular individuals may be very sensitive
to the presence of water or minerals even when hidden under
the surface of the earth, and perhaps the frequent finding
of springs by dowsers is partially to be explained in this way.
Then by practice and experience a power of detecting the
presence of underground water from the vegetation or other
signs on the surface may be developed. There is also without
doubt a great deal of fraud in such matters. Finally, the devil
may sometimes intervene.
5. Modern spiritism is obviously the pythonism, necro-
mancy, and other forms of divination which have been men-
tioned above. It is gravely sinful, therefore, to act as a
medium or to consult one with a view to finding out something
which is not known. Crystal-gazing, table-turning, the use
of the planchette for occult purposes, is also divination and
grievously sinful. It is not impossible that the movements
of the table in table-turning and of the planchette are due to
the unconscious action of the sitters. On this hypothesis it
144 PRECEPTS OF THE DECALOGUE
would not be unlawful to make experiments with a view to
finding out the truth; divination comes in when by such
means the sitters seek to discover what it is certain none of
them knows, consciously or unconsciously.
It is well to bear in mind a remark which St Thomas
Aquinas makes after St Augustine, that the devil wishes to ex-
cite among men a greater curiosity about occult matters " so that
being implicated in these observances, they may become more
curious and get themselves more entangled in the manifold
snares of pernicious error." 1
SECTION IV
On Vain Observance
1. The term vain observance is used by theologians to
designate various kinds of superstition by which altogether
disproportionate means are employed to procure a sure and
certain effect. It comprises the use of charms, spells, and
cabalistic signs, which are used to preserve persons and things
from harm, or cure wounds and diseases, or acquire knowledge
without the labour of study. It also signifies the superstitious
observance of chance events and days, some of which are
considered lucky, others unlucky. Magic is the art of wonder-
working by the help of the devil.
2. Vain observance, or witchcraft and magic, is gravely
sinful for precisely similar reasons as divination is. There is
only an accidental difference between these kinds of super-
stition, for while divination uses disproportionate means to
discover what is hidden by the help of the devil, witchcraft
uses disproportionate means to obtain certain and wonderful
effects by his help. Morally, therefore, there is no difference
between divination and witchcraft. Like divination, witch-
craft may contain an express or tacit compact with the devil,
and although if the compact be express there will always be
mortal sin, there will frequently be only venial when the com-
pact is tacit. Ignorance or good faith or want of full confidence
in the effect will in that case frequently excuse from serious
sin. Moreover, there must be advertence to the total in-
adequacy of the means to obtain the effect desired, and to the
danger of the devil's intervention, otherwise there will not be
the sin of superstition. And so people who do not like to
undertake any journey on a Friday, or to sit down with thirteen
1 Summa Theol., 2-2, q. 96, a. 3, ad 2,
ON SUPERSTITION 145
at table, because they have always heard that it is unlucky, and
because their fathers had similar scruples, may often be excused
from sin.
3. In a case of doubt whether a particular effect is to be
ascribed to natural causes or not, we should rather ascribe it
to natural causes than to the devil, for we must not bring in the
preternatural without necessity, and we do not yet know all
the forces of nature. Thus many believe that telepathy really
exists and is due to natural causes. In such a case of doubt,
then, we may experiment and investigate the matter; it is
advisable to renounce all intention of dealing with the devil
as a precautionary measure. If, on the contrary, it is certain
that the effect is not attributable to natural causes, it should
be ascribed to the devil rather than to God in case of doubt;
for God does not work miracles without good reason, and
ordinarily the sanctity of the person concerned and other cir-
cumstances clearly show divine intervention when it takes
place.
4. Many theologians hold that the phenomena of hypnotism
are due to preternatural causes, and consequently they maintain
that it is unlawful to induce the hypnotic state or to have any
part in it. Others more probably think that the state itself
and the susceptibility of the hypnotized subject to suggestion
on the part of the hypnotizer, together with those phenomena
which affect the bodily organs and the imagination, are due to
natural causes. The rarer phenomena of clairvoyance by
which scenes and passing events at a great distance are seen,
or by which an ignorant medium shows knowledge which is
not possessed in the normal state, must be attributed to preter-
natural causes. For it seems impossible that natural forces
should be able to produce effects altogether beyond their
range. Even if we admit that the hypnotic state and the
bodily phenomena are due to natural causes, it does not follow
that anyone may induce the hypnotic sleep merely for the sake
of experiment or out of curiosity. Such a practice would be
accompanied with grave dangers, moral and physical, and it
is not lawful to permit one's self to be deprived of the use of
reason, and to subject one's self to another's control, without
good cause and proper safeguards. Medical men, however,
and other persons of skill and experience cannot be precluded
from using a means which is very probably innocent, with
proper precautions and for a good reason.
10
CHAPTER V
ON TEMPTING GOD
i . IN this and the two following chapters we will treat of sins
against religion by defect. The first of these is tempting
God, which a person commits by saying or doing something
by way of experiment to discover whether God is wise, power-
ful, good, or endowed with some other perfection. There is
a formal sin of tempting God when there is a positive intention
to make an experiment with God ; the sin is virtual when that
intention is absent, but something is said or done which can
have no other meaning than to find out whether God has
some perfection or not. Even in this case there must be some
reference to God, some desire or wish to implore his help;
otherwise there cannot be any tempting of God.
2. Formal tempting of God is a mortal sin, as is obvious;
for it is a grave insult to the divine Majesty, who has graciously
given men all the knowledge about himself that they require,
and it contains the malice of unbelief as well.
3. God is virtually tempted when, contrary to the designs
of his Providence, we neglect natural means, trusting that he
will give us special help. This too is of itself a grave sin,
but it often becomes venial on account of want of knowledge,
consideration, or advertence. Thus people are guilty of grave
sin who refuse to send for the doctor and will not use the
ordinary remedies when they or their children are seriously
ill, trusting that God will work a miracle. A preacher who
neglected to prepare properly for his sermon, or one who
exposed himself to some slight danger through improper trust
in the divine help, would only sin venially. After doing what
we can, or if we can do nothing, then we may at once with full
confidence have recourse to God in our necessities. The
trials by ordeal, which were in vogue in the Middle Ages,
were in the ninth century condemned by the Church as
superstitious.
146
CHAPTER VI
ON SACRILEGE
i. SACRILEGE is defined to be the irreverent treatment of
sacred persons, places, and things. The irreverence consists in
doing something which is specially repugnant to the sanctity
of the object in respect of its sacred character. A person,
place, or thing becomes sacred by being dedicated to the
service of God by public authority, for it does not seem possible
that the dedication of an object to God by private authority
should be able to lay an obligation jon others to treat it with
the reverence due to sacred things. Such an effect requires
public authority.
Objects become sacred in consequence of being dedicated
to God's service by an authorized person according to the form
prescribed by the Church. Not every form of blessing, how-
ever, makes the blessed object sacred. We must distinguish
between blessings which invoke the divine favour on the use
of certain things, but which do not make them sacred, and
blessings which hallow and consecrate the object so that it
can no more be lawfully used for profane purposes. Food,
or candles, or holy water, which are blessed in the former way,
do not thereby become sacred, and may still be used for
ordinary purposes; churches, chalices, and baptismal water
are consecrated by special blessings and may only be used
for the purposes to which they are dedicated (Can. 1147-
1150).
The sanctity which belongs to a consecrated person is
different from that which belongs to holy places, and this again
is different from that which belongs to sacred things. So that
the sins by which sacred persons, places, and things are violated
are specifically different from each other. Theologians dispute
whether these three species of sacrilege contain other lower
species or whether they are themselves the lowest. Many of
them hold that they are the lowest, and this seems to be the
opinion of St Thomas. 1
2. Sacrilege in all its species is a grave sin of itself, inasmuch
as irreverence shown to sacred things |redounds to the dis-
1 Summa, 2-2, q. 99, a. 3, ad 2.
147
148 PRECEPTS OF THE DECALOGUE
honour of God, to whose service they are dedicated. If,
however, the matter be trivial, as, for example, some slight
irreverence to the Blessed Sacrament, sacrilege will only be
a venial sin.
3. Personal sacrilege is committed in three ways:
(a) By violating the privilege of the canon, by which it is
forbidden under pain of excommunication to lay violent hands
on the clergy or on religious (Can. 2343).
(b) By violating the privilege of the immunity of the
clergy from civil jurisdiction, as far as this is still in
force (Can. 120).
(c) When persons consecrated to God by the vow of chastity
violate their vows. Such persons are all those who are in
sacred orders, and all religious who take public vows even
though they be simple and not solemn. All sins, therefore,
against purity, whether internal or external, which these
persons commit, or which others commit with them, are
sacrileges. It is a disputed point among theologians whether
a private vow of chastity makes the person sacred, so that sins
committed against the vow are sacrilegious. Both opinions
are extrinsically probable, though the negative view seems
more in accordance with what was said above, in keeping with
the common teaching of divines. The question is not of great
practical importance, since sins committed against chastity by
those who are under a private vow have certainly a twofold
malice, one against chastity, and the other against religion;
and sins against religion are called sacrileges in a wide
sense.
4. Local sacrilege is also committed in three ways :
(a) By violating the immunity of sacred places as far as this
is still in force.
(b) By committing certain crimes in a church or public
oratory, which has been consecrated or at any rate blessed,
by which crimes they are polluted according to canon law.
Those crimes are homicide, suicide, any shedding of blood by
violence which constitutes a mortal sin, the putting of the
church to impious and base uses, and the burial within a
church or oratory of an unbaptized person, or of one who has
been excommunicated after a condemnatory or declaratory
sentence (Can. 1172).
(c) By performing certain actions and by committing
certain sins which of their nature or by special disposition of
law are especially repugnant to the reverence due to holy
places. Sacrilege is thus committed by holding a public
ON SACRILEGE 149
market in a church, or a banquet, or using it to stable horses
or cattle. There is, to be sure, a special indecency and irre-
verence in committing any sin in church, but the malice
contracted from this circumstance will only be mortal in
certain special cases.
On this ground it is probable that only external and con-
summated sins against chastity contract the grievous malice of
sacrilege from being committed in a church; internal or not
consummated sins against purity probably do not contract
the grave malice of sacrilege if they are committed there.
5. Real sacrilege is also committed in three ways :
(a) By treating with irreverence sacred things, such as the
sacraments, Holy Scripture, relics, sacred images.
It is a sacrilege to administer or to receive the sacraments in
a state of mortal sin, to quote the words of Scripture for the
purpose of making an obscene joke, 'to treat sacred images and
relics with contempt.
(b) By theft of sacred objects. Sacrilegious theft is com-
mitted by stealing a sacred object from a sacred place, or a
profane object from a sacred place, or a sacred object from a
place that is not sacred, according to an old decree of canon
law. 1 In the first of these cases a double sacrilege is com-
mitted, local and real, as when a chalice is stolen from the
tabernacle ; in the last case real sacrilege only is committed, as
when a chalice is stolen from a priest's room. Local sacrilege
only is committed in the second case, and, indeed, according to
a probable opinion, then only when the object stolen belongs
to the sacred place, or has been entrusted specially to the
sacred place for safe keeping. If a thief picks a pocket in church,
his sin probably has not the malice of a grievous sin of sacrilege,
although it may be grievous as against justice.
(c) By committing the sin of simony, the treatment of which
is reserved for the next chapter.
6. Theft of ecclesiastical property or wilful damage done
to it is sacrilege, for although the money or other property
belonging to the church is not sacred in itself, still by damaging
or stealing it an injury is done to those sacred persons, places,
and causes that are supported by church property. The
private property belonging to a cleric is not ecclesiastical
property, but only that which belongs to a church, Religious
Order, or pious institution erected by episcopal authority.
Theft, therefore, of the private money of a cleric is not
sacrilege.
1 c 21, C. 17, q. 4.
ISO PRECEPTS OF THE DECALOGUE
7. It is not lawful, except for clerics or others who have
care of them, to touch the sacred vessels which are used to
hold the Blessed Sacrament. Palls, corporals, and purifi-
cators should after use be washed by a cleric preparatory to
their being washed in the ordinary manner. A violation, how-
ever, of these regulations would not be a grievous sin of itself;
indeed, when there was a just cause, it would be no sin at all
(Can. 1306).
CHAPTER VII
ON SIMONY
i. SIMONY derives its name from Simon Magus, who, as we
read in the Acts of the Apostles, 1 desired to buy with money the
power of giving the Holy Spirit. It is defined to be a studious
wish to buy or to sell for a temporal advantage something which
is spiritual, or which is annexed to what is spiritual. The terms
of this definition are technical and require some explanation.
Simony, then, is said to be a studious wish to buy or to sell,
in order to emphasize the fact that although no explicit contract
is entered into by the parties, there may still be simoniacal
dealing between them. Thus, if a person makes a money
present to a priest with the intention of obliging him to give
him absolution for his sins in return, he commits a sin of
simony, though there is no express bargaining between them.
In simony a temporal advantage is exchanged for something
which is spiritual. The temporal advantage may be money
and whatever is exchanged for money, or a service rendered,
or favour, patronage, and defence. The spiritual object which
is given for the temporal advantage is whatever has relation
to the salvation of the soul. It may, then, be grace or the gifts
of the Holy Ghost, or the sacraments and sacramentals, or
prayer, or the use of spiritual power for absolving, dispensing,
blessing, excommunicating, and so forth.
Something may be annexed to what is spiritual either ante-
cedently or concomitantly or subsequently. The material of
which a chalice is made is said to be annexed to a consecrated
chalice antecedently, inasmuch as it existed and had its
value before the chalice was consecrated. Something is
annexed concomitantly and extrinsically to what is spiritual
when it is associated with what is spiritual but only acci-
dentally, as the extra labour associated with singing a late Mass.
It is concomitantly and intrinsically annexed to what is spiritual
when the connection is necessary, as the labour which must of
necessity accompany any spiritual function. A temporal ad-
vantage is annexed to what is spiritual consequently, when it
follows from and is derived from what is spiritual, as the right
1 Acts viii 1 8.
152 PRECEPTS OF THE DECALOGUE
to the revenues of the parish is derived from the office of
parish priest. There is no simony in buying or selling what
is antecedently annexed to something which is spiritual,
provided that the price be not increased on account of the
connection with what is spiritual, and provided the Church
has not forbidden it. It is lawful to sell consecrated chalices
or the fabric of a church for what the materials are worth.
The Church has forbidden any money to be received for the
holy oils, even so much as the cost of the oil. Similarly it is
not simony to receive payment for extra labour spent on some
religious function. It is simony to receive money for what is
concomitantly and intrinsically annexed to that which is
spiritual, for they are regarded as identical. It is also simony
to buy or sell that which is consequently annexed to what is
spiritual, for the accessory follows the principal.
2. Simony is called mental when no express contract is
entered into between the parties. It is purely conventional
if the contract has been expressly entered into, but has not yet
been executed by either party ; it is partly conventional when
the contract has been executed by one of the parties. Simony
is real when the contract has been executed by both parties to it.
Simony which is committed with reference to the presenta-
tion and election to benefices, or the resignation or reservation
of them, is called confidential simony, in contradistinction to
common simony which is committed in other matters.
Furthermore, simony is of divine law when it is against the
law of God; it is of ecclesiastical law when it has been con-
stituted by the prohibition of the Church. For, in order to
remove all danger of simony against the law of God, the
Church forbids certain contractual dealings where spiritual
things are exchanged. Thus it is unlawful without due
authorization to exchange benefices, which therefore would be
simony by ecclesiastical law. Similarly the Church in certain
cases forbids the sale of what is antecedently annexed to some
spiritual object. It is thus unlawful to take money for the
cost of the material in the holy oils, or to sell blessed rosaries or
indulgenced crucifixes and other objects of piety. If this is done,
simony is committed, and the objects lose all their indulgences. 1
3. Simony, like sacrilege, is a grave sin, and if it is against
the divine law, it is always mortal. For it is a grave injury to
divine things and to God to barter even a small spiritual thing
for any temporal advantage whatever. If the simony be
merely of ecclesiastical law, it is also of itself a mortal sin,
1 S.C. Indulg., July 12, 1847.
ON SIMONY 153
but inasmuch as it is constituted by ecclesiastical prohibition
and a sin of disobedience is only venial when the matter is trivial,
there may consequently be venial sins of that simony which is
merely of ecclesiastical law.
4. It is not simony to receive stipends for saying Mass
according to the intention of the giver, nor to take stole fees
on occasion of certain priestly ministrations. The stipends
and the fees are not given as the price of the spiritual ministra-
tions, but the occasion of these ministrations is taken for the
fulfilment of the duty which is incumbent on the faithful of
supporting religion and its ministers. " The Lord ordained
that they who preach the gospel should live by the gospel." 1
The amount of these offerings, as well as the occasions on which
they are made, are regulated by ecclesiastical law and custom,
and no change should be made in these ordinances by private
authority. The priest has a strict' title in justice to receive
them from all who are competent to pay. On the other hand,
he has no right to demand more than the authorized amount.
5. The Church has enacted many stringent laws against the
crime of simony. Thus by Canon 2392 those who are guilty
of the crime of simony in any ecclesiastical offices, benefices,
or dignities incur excommunication latae sententiae simply
reserved to the Holy See. Ipso facto they are for ever deprived
of the right of electing, presenting, and nominating if they
have any. Besides, they are to be suspended if they are
clerics. Simony committed in the conferring or reception of
Orders and of other sacraments brings the delinquent under
suspicion of heresy, and, moreover, clerics incur suspension
reserved to the Holy See (Can. 2371).
Simoniacal election to ecclesiastical benefices is null and
void, and the incumbent thus elected obtains no right to the
revenues of the benefice, which accordingly he is bound to
restore to the Church, to the poor, or to his lawful successor,
if he has already received them (Can. 729).
If commutative justice has been violated in other simoniacal
transactions, restitution must, of course, be made; unless
justice has been violated there will be no obligation to make
restitution or to rescind the contract, though it was sinful to
enter into it. Restitution, then, would have to be made by
a priest who exacted more than the accustomed stipend for
a Mass, for he has a just title to receive that amount and no
more ; restitution need not be made when a relic has been sold,
even though the transaction was sinful.
1 i Cor. ix 14.
PART II
THE SECOND COMMANDMENT
THE Second Commandment of the Decalogue is, " Thou shalt
not take the name of the Lord thy God in vain." 1 It prohibits
all irreverent use of the name of God, blasphemy, unlawful
oaths, and violation of vows. Inasmuch as it is virtually
positive, it commands us, always to speak of God with reverence
and respect.
CHAPTER I
THE IRREVERENT USE OF GOD'S NAME
WE take God's name in vain and break the Second Command-
ment when we use the word " God " as an exclamation of
wonder or impatience, or merely as an interjection in such
phrases as " good God," " my God," " by God." If these
phrases are used at fitting times and with due reverence they
are, of course, not sinful but meritorious; the sin consists in
using them without due reverence, too frequently, and merely
as expletives, for such an abuse of the holy name of God shows
a want of reverence to him and is displeasing to him.
This irreverence, however, is not grave, and so the sin of
taking God's name in vain is of itself only venial ; indeed, want
of advertence will often prevent it from being even venially
sinful. Still, care should be taken to correct any bad habit
that may have been contracted in this matter.
What has been said of the name of God may be applied with
due proportion to those of our Lord, the Blessed Virgin, and
the saints.
1 Exod. xx 7.
iS4
CHAPTER II
ON BLASPHEMY
i. BLASPHEMY is an imprecatory or a contumelious speech
against God. Not only words, but actions also, which express
contempt, insult, derision, or imprecation against God are
blasphemies.
Blasphemy is direct when the dishonour of God is intended ;
if the dishonour of God is not intended in itself but it is fore-
seen that it will be the consequence of one's word or actions,
it is indirect. '
Blasphemy which is against God in his own person is
immediate ; if it immediately affects some creature which has
a special relation toward God it is mediate.
2. Blasphemy is a grave insult to almighty God, and is
always a serious mortal sin if it is committed with full ad-
vertence and consent. To deny the existence of God, to
complain against his Providence and assert that he is unjust,
to deny the perpetual virginity of the Blessed Mother of God,
are so many heretical blasphemies and grievous sins.
It is a disputed question among theologians whether blas-
phemy against the saints which is only mediately against God
is of the same species of sin as blasphemy which is immediately
against him. Many assert that the species is different inas-
much as the honour due to the saints is outraged as well as
that which is due to God. Ordinarily, however, it is God
who is chiefly dishonoured by insults offered to his saints,
and so practically we may follow the opinion of other theo-
logians and hold that there is no specific difference between
the two sins.
3. To utter imprecations or to speak injuriously against
creatures which have a special relation to God is blasphemy.
Thus it is grievously sinful to call down maledictions on one's
fellow-men, wishing that they may perish eternally. Such
acts are seriously against charity as well as religion. To utter
imprecations against brute beasts or other creatures which
have no special relation to almighty God is not blasphemy,
and will not ordinarily exceed a venial sin. Profane words
and vulgar expressions like " damn," " bloody," and so forth,
156 PRECEPTS OF THE DECALOGUE
are commonly used without definite meaning, and at most are
venial sins, because they are unbecoming, shock others, or are
manifestations of anger and impatience. It is sometimes said
that blasphemy is most common where faith is strong, and
this may be a reason why real blasphemy is not so common
perhaps with us in ordinary conversation as with some
nations.
CHAPTER III
ON OATHS
i. AN oath is the calling on God to witness to the truth of
what we say. This calling on God may be express or tacit;
it is express when God is mentioned, as, " I swear by God ";
it is tacit when we swear by some creature which in a special
way shows forth the Divinity or has some special relation to
him, as, " I swear by the Christian Faith," " by the Gospel,"
" by Heaven."
In an assertory oath we call God to witness to the truth of
a present or past event; in a promissory oath we call him to
witness to some future event.
A solemn oath is clothed with the ceremonies prescribed
by law, such as holding up the right hand or kissing the Bible ;
a simple oath is devoid of such ceremonies.
An imprecation is sometimes added to an oath by such
words as, " so help me God "; in this case we have an im-
precatory oath ; otherwise it is an invocatory oath.
2. There cannot be an oath strictly so called unless there
be the intention of swearing and a suitable form of words be
used which express that intention. One who uses the col-
loquialism, " I swear it is so," usually has no intention of
taking an oath, nor do the words signify an intention of calling
on God to witness to the truth of what is said. The same
must be said of phrases like " on my honour," " by my faith,"
" God knows "; and a fortiori the mention of fabulous gods,
as > " by Jupiter," etc. However, if there be an intention to
take an oath, this will be sufficient to make it binding in con-
science whatever the form of words may be, so that perjury
will be committed if what is asserted is not true. If the form
of words is suitable for an oath, the intention to swear is
presumed.
3. If the requisite conditions be fulfilled, oaths are lawful,
and indeed they are an act of divine worship, for they are an
acknowledgement of the omniscience and veracity of God, as
well as a public profession of belief in him. This has been
the constant teaching of the Church, teaching which has ample
warrant in both the Old and New Testament. The prophet
158 PRECEPTS OF THE DECALOGUE
Jeremias lays down the conditions which justify an oath, and
many instances of oaths are found in the epistles of the Apostle
of the Gentiles. The words of our Lord 1 do not prohibit the
taking of oaths if the requisite conditions be present. They
give expression to his desire that all Christians should be so
truthful and sincere that it will not be necessary for them
to use oaths to confirm the truth of what they assert. The
conditions which make an oath lawful are given in the words
of Jeremias: 2 " And thou shalt swear, As the Lord liveth, in
truth, and in judgement, and in justice."
We swear in truth when we are morally certain that what
we assert under oath is according to fact. We are not justified
in asserting that to be true which we do not know to be true,
and we commit the grave sin of perjury if we swear to what
we know to be false.
We swear with judgement when there is a just cause for
invoking the testimony of God and it is done with proper
consideration and reverence. A just cause will be any matter
of some importance for the welfare of either soul or body,
whether it be public or private. We are not, therefore, justified
in swearing to every assertion which we believe to be true;
there must be some special reason for employing the name
and authority of God to confirm what we say. However,
provided that the other conditions are not wanting, the defect
of judgement in swearing will not be more than a venial sin,
for it is no more than the idle use of the name of God.
It is an insult to God to invoke his testimony to a sinful act
or in furtherance of what is sinful. If this is done, the oath
is unlawful on account of the want of justice. Justice, then,
in this connection requires that the assertion in an assertory
oath should not be sinful, such as a sin of detraction or boasting
about past sins. In a promissory oath, that which is promised
must be honest and lawful.
There is some difficulty and dispute among theologians
about the gravity of the sin which is committed when an oath
wants justice. If in an assertory oath the testimony of God
is unjustifiably invoked to promote a seriously sinful object,
the want of justice in the oath will be gravely sinful. If, on
the contrary, the testimony of God does not further the end
in view, the want of justice will probably be only venially
sinful, because the assertion is true, as is here presumed, and
the irreverence committed against God by invoking his testi-
mony even to a gravely sinful act does not seem to many to be
1 Matt, v 34. Jer. iv a.
ON OATHS 159
more than a venial sin. An oath, therefore, taken to confirm
detraction in a grave matter is mortally sinful; an oath con-
firming a boast about grave sins committed in the past is
probably only venial.
Somewhat similarly in a promissory oath, if the act promised
be gravely sinful, the defect of justice makes the oath gravely
sinful; for it is a great insult to God to use his testimony to
further what is mortally sinful. If the act promised is only
a venial sin, a probable opinion^ holds that the oath is only
venially sinful, against a more probable contrary view.
4. The effect of a promissory oath is to bind the person
swearing to do what he promises by an additional obligation
derived from the virtue of religion, which requires that out
of reverence for God we should religiously perform what we
promised under oath. If we fail to do this in a matter of
moment, grave sin will be committed, as all acknowledge.
Moreover, as is obvious, if when the oath is taken there is no
intention of keeping it, a grave sin of perjury is committed,
for perjury is never venial on account of triviality of matter.
If, however, when the oath was taken there was a serious
intention of keeping it, but afterwards there was a failure to
do so in a matter of small moment, a probable opinion holds
that such a want of fidelity in a small matter cannot be more
than a venial sin.
5. The obligation imposed by a promissory oath is of strict
interpretation, and follows the nature of the act or contract
to which it is annexed, so that it is dependent on all the condi-
tions and limitations with which law, or custom, or the cir-
cumstances invest the act or contract. For a promissory oath
is accessory and follows the nature of the principal act to
which it is annexed. And so an oath to observe the rules
or statutes of a corporation is understood to refer only to those
that are in force. 1
6. An oath should conduce to the service and honour of
God; it cannot be a bond of iniquity; and so an oath to do
what is wrong is sinful and of no effect. Similarly, an oath
to do what is useless, or which hinders greater good, is null
and void. In case, however, another party has acquired rights
under an oath, justice requires that this should be kept, and so
the mission oath, by which a sworn promise is given to serve
a particular church or mission, binds a missionary priest even
though he is persuaded that he has a vocation to the religious
state.
1 Can. 1318, 1321.
160 PRECEPTS OF THE DECALOGUE
7. In accordance with rules of canon law, an oath extorted
by violence or grave fear is valid, but it can be dispensed by
an ecclesiastical superior. Moreover, an oath taken without
violence or fraud by which one renounces a private advantage
or favour granted him by law must be kept as long as it can
be kept without sin (Can. 1317, sec. 2, 3).
8. An oath may cease to bind from intrinsic or from ex-
trinsic causes. If circumstances produce a change in the
matter of the oath so that it has become unlawful, or useless,
or an obstacle to greater good, or if some condition is not
fulfilled, the oath no longer binds. The same must be said
when the motive of a promissory oath no longer exists, as if
I swore to help a poor person with money who subsequently
becomes rich (Can. 1319).
An oath may be annulled, dispensed, commuted, or relaxed,
in much the same way as a vow, and it will be more convenient
to treat of these extrinsic causes for being released from the
obligation of an oath in the next chapter, where the doctrine
is applicable to vows and oaths alike (Can. 1320).
CHAPTER IV
ON VOWS
i. A vow is a promise made to God about something which
is good, possible, and better than its omission.
It is, then, a promise, a contract with God, a deliberate taking
on one's self of a new obligation which binds the conscience;
and in this it differs from a mere purpose to do better, which
imposes no new and special obligation. Such an act must be
perfectly human, performed with full knowledge and with
complete use of reason, so that a vow taken by a man who
was half drunk, or who had not the full use of reason, would
not be valid. A vow, however, does not require actual and
explicit consent when the obligation is assumed; it will be
sufficient if there is virtual and implicit consent. A person
who receives the subdiaconate, to which he knows that the
Church has annexed a solemn vow of chastity, takes the vow
by the very fact of being ordained, though at the time he is
not thinking of it.
A vow in {the [strict sense is an act of divine worship offered
to God alone, and so we cannot take a vow to the Blessed
Virgin Mary or to the saints.
The matter of a vow must, of course, be something which
is lawful and good ; it would be an insult to God to promise
him to do something wrong. It must be something which
is possible, both physically and morally, for there can be no
obligation to do what is impossible. A vow, then, to avoid
all sin, even the slightest, would be invalid, for without a
special privilege of God it is impossible. The matter of a
vow must not only be good, but better than its omission or
its opposite. For what is promised to God in a special manner
and under a fresh obligation must be something that will be
pleasing to him, but a promise to do something which had
better not be done cannot be pleasing to God, who desires
our perfection.
A vow is absolute when it has no condition attached to it,
otherwise it is conditional.
A personal vow makes a promise of some action to be
performed; a real vow dedicates a thing to God.
i- 161 ii
1 62 PRECEPTS OF THE DECALOGUE
Vows are perpetual if the obligation is undertaken for life ;
otherwise they are temporary.
A solemn vow is one which is invested by the Church with
special force and stability, together with certain legal effects;
others are simple. The vows taken by religious in regular
orders specially approved by the Pope, and by those who
receive sacred orders, are solemn.
2. Substantial mistake about the matter of a vow or about
the circumstances which are regarded as entering into the
substance of the matter invalidates a vow. For substantial
mistake hinders consent of the will; consent was given to
something which was not there, and so there was no contract.
A vow, then, dedicating to God a chalice which is thought
to be silver, while in reality it is gold, would be invalid, just
as a sale of it would be under the same mistake. Merely
accidental mistake about things of little moment which were
not really the motive for taking a vow does not invalidate it.
However, according to St Alphonsus, 1 it is a probable opinion
that a mistake about something connected with a vow, which
if it had been known before would have prevented its being
taken, is sufficient to invalidate it. This doctrine may be
applied to private vows, but it cannot be extended to the vows
of religion, which place the religious in a permanent state of
life. In order to invalidate these, mistake must be substantial.
For just as the perpetuity of the state of marriage, 4 the good
of the parties concerned, and the public good, require that
only substantial mistake should invalidate marriage, so for the
same reasons only substantial mistake invalidates the vows of
religion, by which the religious enters into mystical espousals
with Christ.
Fear arising from natural causes, provided that it does not
take away the use of reason, does not invalidate a vow. If,
however, grave fear be unjustly caused with a view to com-
pelling another to take a vow, the. vow is null and void (Can.
1307). The same is probably true even if the fear be slight.
For God cannot be supposed to accept a promise which
has not been freely given, but on the contrary extorted by
unjust violence.
3. A vow, as we have seen, imposes a special obligation on
him who has taken it to perform what he has promised: " If
thou hast vowed anything to God, defer not to pay it ; for an
unfaithful and foolish promise displeaseth him : but whatsoever
thou hast vowed, pay it." 2 If a special time was fixed for the .
1 Theol. Mor., 3, n. 226. 2 Eccles. v 3.
ON VOWS 163
fulfilment of the vow, with the intention that it should be
fulfilled then, and at no other time, it must be fulfilled at the
time appointed under pain of sin, and it no longer binds after
the time has elapsed. If, on the contrary, it was intended
that it should continue to bind even after the time fixed had
elapsed, then the obligation still remains. The obligation
should be fulfilled at the proper and reasonable time, and
unreasonable delay will be sinful: " When thou hast made a
vow to the Lord thy God, thou shalt not delay to pay it. ...
And if thou delay, it shall be imputed to thee for a sin." 1 It
is not clear, however, whether even notable delay in the
execution of a vow is always mortally sinful. Notable delay
without just cause would be a mortal sin if the obligation of
the vow were grave, and if the delay endangered its execution
altogether or made the matter of the vow notably less than
was promised. On the other hand, if a rich man vowed to
give a large sum of money to the poor, assigning no particular
time for the execution of the vow, it is probable that he would
not commit a grave sin, even if he deferred giving the money
until his death, and then gave it by his will. For in these
circumstances the matter of the vow is not seriously affected
by the delay, which therefore cannot be a grave sin.
The measure of the obligation of a vow is the will of him
who takes it, much in the same way as the obligation of a law
depends on the will of the lawgiver. Ordinarily it will be
presumed that in grave matter, such as the Church considers
to be sufficient for a precept to bind under mortal sin, a vow
also binds under pain of grave sin, for the intention of him
who took the vow is presumed to accommodate itself to the
matter. Nothing, however, prevents him from limiting the
obligation of a vow even in grave matter, so that transgressions
of it will be only venial sins, if he expressly intended it. This,
however, must not be understood of the essential vows of
religion, nor of the solemn vow of chastity annexed to sacred
orders. These vows are regulated by the Church, and accord-
ing to her intention they bind under pain of grave sin in grave
matter. Another exception must be made to the general rule
that the obligation of a vow depends on the will of him who
takes it ; for if the matter be light it cannot form the ground
for a grave moral obligation, when this is imposed by a human
will. As a contract binds only the parties who agree to it,
so no one can be bound by a vow made by someone else.
In former times it was not uncommon for parents to vow a
1 Deut. xxiii 21.
1 64 PRECEPTS OF THE DECALOGUE
child to religion. Such a vow put no obligation on the child,
but the parents were bound by it to give the child the oppor-
tunity of entering religion if he desired to do so. There are
also instances of communities who have jointly taken a vow
to observe a certain day as a fast or a feast. Thus the Romans,
in the year 1703, vowed to observe as a fast day the vigil of
the feast of the Purification of the Blessed Virgin Mary in
thanksgiving for being preserved from an earthquake. The
successors of those who took such a vow are bound to fulfil
it, much in the same way as they are bound to pay interest
on the National Debt. Their predecessors had the power to
bind themselves and their successors, for the community
remains the same moral entity.
We saw above that the matter of a vow must be something
which is physically and morally possible. It may happen that
he who took the vow may be able to fulfil it in part only and
not wholly. He will be bound to do at least this when the
matter is capable of being divided and is usually so treated,
for the obligation of the vow then falls on the whole and
on its several parts. Otherwise he will not be bound, nor
will he be bound to do something which was a mere accessory
of the substance of the vow, even if it be possible. And
so one who should vow to fast for a week, if he found this
impossible, would not be excused from fasting on the days
that he could do so. But if he had vowed to build and decorate
a church and afterwards found this to be impossible, he would
not be bound to build a portion of it, nor to decorate some
other church.
4. A vow may cease to bind for intrinsic or for extrinsic
reasons. It will cease to bind intrinsically if the matter cease
to be a better good or become impossible. Thus if a young
man had vowed to enter religion, but his parents afterward
became dependent on him so that he could not leave them
without a violation of duty, his vow would cease to bind as
long as the same conditions lasted. Or if a wealthy man
vowed to spend a considerable sum of money in charities
every year, if he became poor his vow would no longer bind
him. And generally a vow, like any other promise, will cease
to bind if circumstances supervene which at the outset would
have prevented the vow from being taken. A vow ceases to
bind extrinsically if it is annulled or dispensed or commuted.
We will treat of these extrinsic causes of the cessation of a
vow in the following paragraphs.
5. The annulment of a vow may be direct or indirect. By
ON VOWS 165
direct annulment the obligation of a vow is altogether removed
by one who has authority over the will of the person who took
the vow. For those who are placed in such a state of de-
pendency on their superiors cannot undertake any absolute
obligation; they can only bind themselves conditionally,
supposing that their superior consents. If he does not con-
sent, the obligation falls to the ground (Can. 1312).
By indirect annulment the obligation is suspended by one
who has authority over the matter of the vow. For it is not
just that an obligation should be undertaken which interferes
with the rights of someone else. And so if a servant took
a vow to hear Mass every morning, her mistress, whose rights
are infringed thereby, might suspend the obligation of the
vow as long as the servant remains with her, for no service
is rendered to God by injuring a fellow- creature. When the
term of service expired, the obligation of the vow would
revive.
The annulment of a vow will be valid even when it is done
without just cause and against the will of the subject, for even
then a condition is wanting on which the validity of the vow
depended. It will be lawful as well, if there be a reasonable
cause, which need not necessarily be a very serious one.
All religious superiors can directly annul the vows taken
by their subjects after their religious profession, and indirectly
the vows taken by them previously, as far as they prejudice
religious discipline or the rights of superiors. The vows of
poverty, chastity, and obedience the essential vows of religion
by the taking of which a person becomes a religious cannot
be annulled; for it is only by them that religious superiors
receive their authority over the wills of their subjects, and
authority is powerless against its own source.
Parents can directly annul the vows of their children taken
before the age of puberty, when children become independent
of the authority of their parents in matters relating to the
service of God. They can indirectly annul the vows of their
adult children as long as they continue to live with them.
A husband can directly annul the vows of his wife taken
after marriage, and indirectly those taken previously. A wife
can annul the vows of her husband only indirectly, as far as
they prejudice her rights.
6. A dispensation from a vow is a remission of the vow
made in the name of God for a just cause by one who has
spiritual jurisdiction in the external forum. The Church has
always understood that the power to dispense vows is con-
i66 PRECEPTS OF THE DECALOGUE
tained in the authority granted by our Lord to his Church. 1
She exercises this power in the name of God, not arbitrarily,
but for just cause, which is required not merely for the law-
fulness, but also for the validity of the act. As examples of
a just and sufficient cause theologians give the following : the
public good or the private spiritual advantage of him who is
dispensed; unusual difficulty in the observance of the vow;
the fact that the vow was taken without sufficient deliberation
or in immature age.
The power of dispensing vows belongs to the public author-
ity granted by God to the Church in order that she may rule
and legislate for her people. It does not belong to the power
of remitting sins which is exercised in the sacrament of Penance.
All ecclesiastical prelates, then, who exercise jurisdiction in
the external forum in their own name can dispense from vows,
except in so far as their authority has been limited by a superior.
Other ecclesiastics can only dispense from vows by delegated
authority and according to its terms and conditions.
(a) The Pope can for just cause dispense any of the faithful
from any vow.
(b) For a good reason and provided that the dispensation
does not injure the rights of others, local Ordinaries can dis-
pense their subjects and also strangers from private vows
which are not reserved to the Holy See. The only private
vows which are now reserved to the Holy See are a vow of
perfect and perpetual chastity and a vow of entering into a
religion of solemn vows, if they were taken absolutely and after
the completion of the eighteenth year of age (Can. 1309, 1313).
(c) Prelates of Religious Orders have quasi- episcopal juris-
diction over their own subjects, and as a general rule have
the same power over these as a Bishop has over his subjects.
Besides, they receive by their privileges ample delegated
authority to dispense not only their own subjects, but seculars
and lay people as well. The privileges granted to the re-
spective Orders should be consulted concerning this special
authority and the conditions of its exercise.
(d) Parish priests and confessors have no jurisdiction in the
external forum, and can only dispense from vows by delegated
authority. They should consult their faculties to know
what powers they have received from their Bishop.
When a vow has been made in favour of a third person and
accepted by him, such a vow cannot lawfully be dispensed
without his consent, otherwise justice would be violated. And
1 Matt, xviii 18.
ON VOWS 167
so, although a Bishop has power to dispense members of
diocesan congregations from the vows of religion, he cannot
do this lawfully without the knowledge and consent of the
superiors of the Order. 1 The religious vows of congregations
which have in any way been approved by the Holy See are
reserved to the Pope.
The vow of chastity imposes a serious and arduous obliga-
tion which should not be undertaken without mature delibera-
tion and knowledge of one's own strength. A confessor
should be slow to approve of such a vow being taken, especially
if it is to be perpetual. When there is just cause for a dis-
pensation being granted, it is the practice of the Church to
commute, rather than altogether to dispense, a perpetual vow
of chastity. This practice, though not of obligation, should
be adhered to by those who have authority to dispense from this
vow. It may be commuted into the obligation of receiving
the sacraments at least once a month, saying the rosary every-
day, or other works of piety.
7. A vow is commuted when another good work to be
performed under the same obligation is substituted for that
which was promised.
All who can dispense from a vow can also commute it, for
the less is contained in the greater. It is obvious, however,
that it must not be done to the injury of a third person. The
person who is under vow may commute it into some good
work which is evidently better than what was promised, for,
as the rule of canon law has it, he does not violate his promise
who changes it into something better (Can. 1314). He may
also commute his vow into something that is of equal merit;
but to avoid the danger of self-deception, and because it is
not easy to say when good works are of equal merit, it is better
to have recourse to one's confessor. Special authority is
required to commute a vow into something which is less good,
for such a commutation is a sort of dispensation from the
vow. In order that commutation into something which is
less good may be lawful, a just cause is required, though less
than is required for dispensation ; probably, however, if there
be no just cause the commutation will be valid, but the obliga-
tion will remain of supplying the deficiency as in human
transactions. No special cause is required for commuting
a vow into something which is evidently better ; greater readi-
ness in fulfilling one's obligation will be a sufficient cause for
commuting a vow into something of equal merit.
1 Constitution of Leo XIII, Conditae, December 8, 1900.
1 68 PRECEPTS OF THE DECALOGUE
One whose vow has been commuted is always at liberty to
return if he pleases to the observance of his vow, for the com-
mutation was made in his favour, and he may renounce it.
When a vow has been commuted by competent authority
its obligation is extinguished or transferred to the new work,
and it does not revive even if the performance of the sub-
stituted good work is found to be impossible. On the con-
trary, when the substitution has been made by private authority,
in case the performance of the substituted work is impossible,
the original obligation revives.
PART III
THE THIRD COMMANDMENT
THE Third Commandment is: " Remember that them keep
holy the sabbath day." 1 This precept of the Old Law is
partly ceremonial, and in so far it has been abrogated by the
preaching of the Gospel, and partly it belongs to the law of
nature, which binds at all times and in all places. The sabbath,
the day of rest, 'was the last day of; the week under the Old
Dispensation, and the manner of observing it was strictly
regulated. The natural law prescribes that we should occa-
sionally offer to God an external and public worship, inasmuch
as he is the Creator of body and soul and the Author of
human society. The necessity, too, of keeping up within us
a lively sense of God's existence and of our dependence on him
compels us to give outward expression to our religious in-
stincts, otherwise they will quickly evaporate. The Christian
Church, using the power given to her by her divine Founder,
and asserting her independence of the yoke of Jewish legalism,
determined the natural law in this matter by assigning a
definite time and mode for its observance. Instead of the last
day of the week she chose the first, the day on which Christ
rose from the dead, and the day on which the Holy Spirit
came down on the Apostles. This she called the Lord's Day,
and commanded her children to keep it holy by hearing Mass
and resting from servile work.
CHAPTER I
ON HEARING MASS OF PRECEPT
i. ECCLESIASTICAL laws of the early Christian centuries show
us that the precept of hearing Mass on Sundays dates from
the earliest times. This obligation is grave, for Innocent XI
condemned a proposition 2 which asserted the contrary.
1 Exod. xx 8. 2 Prop. 53.
169
i?o PRECEPTS OF THE DECALOGUE
Besides hearing Mass it is a laudable thing to spend some
time on Sundays in other acts of piety and prayer, as all
good Catholics do. Still there is no other positive obligation
besides that of hearing Mass which binds under sin. It is
not a sin, then, to omit evening service or Benediction of
the Blessed Sacrament; and when it is impossible to hear
Mass, there is no strict obligation to have private devotions
instead.
In order to fulfil the precept of hearing Mass according to
the mind of the Church, the whole of Mass must be heard,
in the proper place, while bodily present where it is being
celebrated, with devout attention. Something must be said
on each of these points.
2. The whole of Mass must be heard, so that at least a
venial sin is committed if one be wilfully absent during any
portion of it. The sin will not be grave unless a notable part
of the Mass be missed. What is a notable part depends partly
on its importance, partly on the length or quantity. Inasmuch
as the essence of the Mass in all probability consists in the
act of consecration, to be voluntarily absent during the con-
secration would be mortally sinful ; one would not have heard
Mass. Certainly it is a grave sin to be wilfully absent during
both the consecration and the communion. Up to the offer-
tory is called the Mass of the catechumens, and as this forms
a kind of introduction to the Mass proper, to come in only
at the offertory probably does not amount to more than a
venial sin. We may take it as a general rule that a mortal sin
is committed if a third part of Mass be missed, and less is
sufficient for a grave sin when any action of special importance
in the sacrifice is in the portion missed. In case of involuntary
absence during a notable portion of Mass there will be an
obligation of making it up by hearing that portion of another
Mass if there be an opportunity of doing so on the same
day. The consecration, however, and the communion
must always be in the same Mass. There is no obligation
to make up small portions of the Mass which have not been
heard.
A proposition condemned by Innocent XI falsely asserted
that one might satisfy the precept of hearing Mass by being
present while two portions were being said by different
priests. 1
3. In order to satisfy the precept, Mass must be heard in
1 Prop. 53.
ON HEARING MASS OF PRECEPT 171
the proper place. By a decree S.R.C. (January 23, 1899) the
faithful may satisfy the precept by hearing Mass in any public
church or public or semi-public oratory. A semi-public
oratory is there defined as one which by the authority of the
Ordinary is erected in a place which is not absolutely public,
but more or less private, for the use not of all the faithful,
nor of a particular person or family, but of a community or
society of persons. No one besides those who are mentioned
in the indult can satisfy the precept by hearing Mass in a
strictly private oratory, which by an indult of the Holy See
is erected in a private house for the use of a particular person
or family (Can. 1249).
As Benedict XIV teaches, 1 Bishops cannot compel the
faithful to hear Mass in their parish churches; they have no
power to abrogate a universal law and custom of the Church
or a decree of the Sacred Congregatibn of Rites. The liberty,
however, of hearing Mass in any place of worship except
strictly private oratories, does not exempt the faithful from
contributing to the support of their own pastors according to
their means. 2
4. One would not hear Mass so as to satisfy the precept if
he were stationed apart at a considerable distance from the
place where it was being celebrated, even though he might be
able to see and hear what was being done. He must be morally
present so as to form one of those who are together hearing
and offering up the Holy Sacrifice. It is not necessary that
he should be able to see the priest or the altar, nor even to
hear what is said. It will be sufficient if he follows the prin-
cipal parts of the Mass. So that a person could hear Mass if
he were stationed in a side chapel of a great cathedral while
Mass was being said at the high altar, though he might not
be able to hear or see anything that was going on. Similarly,
if Mass is being said for a large army or crowd of people, those
on the outskirts of the multitude may hear Mass, though they
are at a great distance from the altar. If the church is full
and large numbers cannot get inside, still these latter may
hear Mass being celebrated inside. On the other hand, if
while Mass is being said in a church, someone were posted
on the opposite side of a wide street or square, he could
not hear the Mass so as to satisfy the precept, though he
1 De Synodo, xi, c. 14.
2 i West., d. 23, n. 5.
172 PRECEPTS OF THE DECALOGUE
might be able to see what was going on through the open
door.
5. It is necessary to have the intention of hearing Mass,
and it must be done with the requisite attention. The Church
prescribes a human action to be performed in the service of
God, and so there must be the necessary constituents of a
human act. The act, then, must be voluntary; there must
be the wish or the intention to hear Mass. So that one who
was forced to be present against his will, or who came to
church merely as a companion to another, or to hear the music,
would not hear Mass.
Attention is an act of the mind by which we advert to what
is going on. This is attention in the proper sense of the term,
and is called internal to distinguish it from external attention,
which is the avoidance of any external action which is in-
compatible with internal attention. Thus if one is distracted
during Mass and thinking of other things, but does no external
action which is incompatible with hearing Mass, he has
external, but not internal attention. If during Mass he
engages in a prolonged conversation with a neighbour, or
reads a profane book, or paints, he has not even external
attention.
The Church commands at least external attention while
Mass is being said, otherwise the precept will not be fulfilled.
All, too, admit that voluntary distractions during Mass are
venially sinful, just as they are during ordinary prayer. It is
a disputed point among theologians whether internal attention
is also necessary for the observance of the Church's law. The
more common opinion holds that it is. The contrary, how-
ever, is probable, for actual attention does not seem to be an
essential element of prayer; the form of Extreme Unction,
which is a prayer, is certainly valid even if said by a priest
without internal attention. The Church's law, therefore,
which directly provides for external decorum in the service
of God, would seem to be fulfilled, provided that there is at
least external attention while hearing Mass. This opinion
does not foster the careless hearing of Mass, but it does
serve to relieve the scrupulous conscience from needless
anxieties.
6. We have here to do with a positive precept, and any
serious inconvenience or loss, spiritual or temporal, affecting
one's self or one's neighbour, which would follow from hearing
Mass, will excuse the faithful from fulfilling the obligation.
ON HEARING MASS OF PRECEPT 173
So that the sick, the convalescent who could not venture out
of doors without danger, those who have to take care of the
sick, mothers of families who have little children to attend
to, those who live at such a distance that it would take them
more than an hour to walk to church, all these are excused
from hearing Mass regularly.
CHAPTER II
ON SERVILE WORK
i. IN order that all, and especially the poor, may have the
opportunity of fulfilling their religious duties, the Church
has forbidden servile work to be done on Sunday. Servile
work is the rougher and harder sort of manual labour which
is done by common workmen and labourers, and which used
to be done by slaves. It comprises ploughing, digging,
building, sewing, and similar occupations. It is distinguished
from liberal and from mixed work. Liberal work is done
mainly by the intellect, and comprises writing, studying,
painting, and so forth. Mixed work comprises a class of
occupations which are neither exclusively liberal nor servile,
but which are done indifferently by all conditions of men.
In this class are hunting, fishing, travelling, and similar occu-
pations. Of these only servile work is forbidden on Sundays,
and in determining what is servile work, and therefore for-
bidden, we must consider not only the nature of the work
itself, but also the way in which it is done, the light in which it
is commonly regarded, and other circumstances. Thus it is
usually held that although the rougher work of the sculptor
is servile and unlawful, the more delicate is liberal and may
be done on a Sunday. Similarly, fishing with rod and line
is not unlawful, but going out to sea with a fishing-smack
and plying the trade in the ordinary working- day way is
forbidden. In the same way one who lives by photography
should not ply his trade on a Sunday, but it would not be
wrong for an amateur to do the same work on that day by way
of recreation and amusement.
2. This part of the precept of keeping the Sunday holy also
binds under pain of grave sin. If, however, the matter be
light, the doing of a little servile work on a Sunday will be
only a venial sin, and none at all if there be good reason for it.
According to the common opinion, it would be necessary to
work for well over two hours at something which is forbidden
in order to commit a grave sin. Still longer time would be
required for a mortal sin in doing servile work of a lighter
kind, which had for it some sort of excuse on the ground that
ON SERVILE WORK 175
it helps on the cause of religion and charity. Making rosary
beads or scapulars belongs to this category.
3. Public trading is also forbidden on Sundays, as well
as judicial proceedings in the exercise of contentious juris-
diction, and the solemn and public taking of oaths (Can.
1248).
English municipal law goes farther than the law of the
Church in its provisions for the due observance of the Lord's
Day. Thus not only is Sunday a dies non for the sitting of
courts or the meeting of public bodies, but contracts such as
are within the ordinary calling of tradesmen, workmen,
labourers, or other persons of the same sort, made and com-
pleted on Sunday, are void, and abstention from work and
even from play is required by a series of statutes. 1
Although these provisions of the civil authority do not
impose an obligation in conscience under pain of sin, yet
indirectly they have caused the Sunday to be observed among
us with greater strictness than is absolutely required by
ecclesiastical law.
4. As we saw with regard to the hearing of Mass, so in this
matter too, if the precept cannot be observed without serious
inconvenience, it ceases to bind. And so, work in foundries
or in agriculture which cannot be stopped without grave in-
convenience and loss may be done on Sundays. Work, too,
in the direct service of religion, or necessary works of charity
connected with the care and nursing of the sick, or the burying
of the dead, are not forbidden. Custom permits of the sweep-
ing of the house and the cooking of meals, and certain other
more or less necessary occupations on Sunday. Finally,
ecclesiastical authority can, for good reason, dispense in the
observance of this law. Not only Bishops, but priests who
have the cure of souls, have discretionary power to give dis-
pensations in particular cases. 2
1 Encyclopedia of Laws, s.v. Sunday.
2 i West., d. 23, n. i; Can. 1245, sec. i.
PART IV
THE FOURTH COMMANDMENT
THE Fourth Commandment is: " Honour thy father and thy
mother." 1 By this Commandment not only are children
bound to be dutiful in their conduct towards their parents,
but these latter are also implicitly bidden to perform all the
obligations which nature imposes on them towards their
offspring, inasmuch as rights imply corresponding obligations.
The mutual obligations of parent and child may be extended
to all who hold an analogous position towards each other, and
so under this heading theologians ['commonly treat of the
mutual obligations of other relations, and of superiors and
subjects, both ecclesiastical and civil.
CHAPTER I
ON THE DUTIES OF CHILDREN TOWARDS
PARENTS
i. CHILDREN owe their existence to their parents, and for
many years, until they come to maturity, they stand in need
of their constant care and direction. It is but right, therefore,
that children should love, reverence, and obey the authors of
their being and their natural guardians. This is due to
parents from their children on account of the special relation-
ship in which they stand towards them, and so, as St Thomas
teaches, 2 there must be a special virtue which regulates the
mutual obligations of parent and child. This virtue is called
piety in Catholic theology, and it regulates not only the mutual
offices of parents and children towards each other, but our
duty to other near relatives, and to our country and fellow-
countrymen. It is a virtue similar to charity, but it binds
more strictly, so that while charity prescribes a general love
1 Exod. xx 13. 2 Summa, 2-2, q. 101, a. 3.
176
THE DUTIES OF CHILDREN TOWARDS PARENTS 17?
for all mankind, piety obliges us to a special love for those
who are near to us, and for the country in which we were
born. 1
If, then, hatred or want of love for our fellow- men is of
itself a grave sin, as we saw above, it will be still easier to
commit a grave sin by want of proper affection for our parents.
To show dislike of them or contempt for them, or to show
that we are ashamed of them, will be a grave sin if our unfilial
conduct is likely to cause them serious grief. In the same
way, serious want of reverence and respect shown in word or
action is grievously sinful. To strike a parent, or even to
threaten to do so, will usually be mortally sinful.
By the duty of obedience children are bound to obey their
parents in all that belongs to their bringing up and to domestic
discipline. Sins of disobedience will be grievous if the matter
is sufficiently important and the command is given with the
serious intention of imposing a strict obligation.
Children are only bound to support their parents when they
cannot support themselves, for whatever property a child may
have or may acquire belongs exclusively to him. Among the
working classes it is usual for elder brothers or sisters who
have begun to work to throw their earnings into the common
stock for the support of the family until they leave home and
get an establishment of their own. This is quite as it should
be, for the money which they earn is scarcely sufficient to
pay for their own keep; or if it does more, there are little
brothers and sisters or aged parents who are dependent on
them, and whom they are bound to help to support.
2. The other obligations of children towards their parents
are permanent and last as long as life, but that of obedience
ceases with their emancipation. In England children are
emancipated from the control of their parents when they be-
come twenty- one years of age, when they marry, or when they
enter into religion ; for as soon as they have attained the age of
puberty they are independent of their parents in what concerns
the salvation of their souls and the choice of a state of life.
A minor may also enlist as a soldier without his parents'
consent according to the English law.
Moreover, when a child has attained years of discretion,
which he is considered to do at sixteen, it would seem that
he may lawfully depart from home and provide for himself,
if it be for his advantage. This, of course, supposes that the
1 St Thomas, Summa, a-a, q. 101, a. i.
i. 12
I7 8 PRECEPTS OF THE DECALOGUE
necessities of his parents or of his brothers and sisters do not
require that he should remain at home. If a youth has acted
in this way, and it appears to be for his benefit, English courts
will not compel him to return home, and it was the common
teaching of the classical moralists that in acting thus a youth
would do nothing wrong. 1
1 Laymann, lib. 3, tract. 4, c. 8, n. 13.
CHAPTER II
THE DUTIES OF PARENTS TO CHILDREN
i. NATURE herself teaches parents their duties towards the
offspring that they have brought into the world, and which
stands in need of their loving care for many years before it
arrives at maturity, so as to be able to lead an independent
life.
Parents, then, are bound first and, foremost to love their,,
children with that special affection which belongs to the virtue
of piety. They will commit grievous sin if they are indifferent
to their children's welfare, if they deliberately curse them, if
they show great and foolish preference for one child over
others to the serious discontent of the latter.
They are bound to support their children until these can
support themselves. Even before the child's birth, the mother
must take care not to risk its life or natural development.
After birth she is bound at least under venial sin to nourish
it with her own milk, unless some good reason excuse her.
Then there is the obligation of providing sufficiently for the
child's maintenance, according to its position in life, by a
prudent administration of the family property, or by earning
money and saving what is necessary for the purpose. Grave
sin is committed by a father who will not work, or who
squanders his wages in drink or gambling, so that wife and
children are deprived of proper support. Parents are bound
to instruct their children in all that is required to enable them
to lead a good Christian life ; they must warn them of dangers
into which their inexperience would lead them, and correct
them when they do wrong. Above all, they must be careful
to give them good example by leading a good Catholic life
themselves, and by never being a source of scandal to their
children in word or deed. They must watch to see with
what companions their children associate, what they read, and
what places they frequent.
The Elementary Education Act, 1876, declared it to be the
duty of the parent of every child between the ages of five and
fourteen years to cause it to receive efficient elementary in-
179
i8o PRECEPTS OF THE DECALOGUE
struction in reading, writing, and arithmetic; and penalties
were imposed on parents who neglected this duty. As such
an education can in most cases only be given in a school, it
becomes a practical moral question of great importance as to
what sort of school Catholic parents should select. The
education of their children belongs primarily by the law of
nature to the parents, and if they entrust a portion of their
task to others they are bound to select such as can and will
educate them according to Catholic principles. The Church,
too, has received a divine commission to teach, and those who
by baptism have become subject to her authority are obliged
to be guided by her directions in this all-important matter.
The Church condemns all non- Catholic schools, whether they
be heretical and schismatical or secularist, and she declares
that as a general rule no Catholic parent can send his young
children to such schools for educational purposes without
exposing their faith and morals to serious risk, and therefore
committing a grave sin. A Catholic child, if educated away
from home, should be placed in a Catholic school, under
Catholic masters or mistresses. Sad experience in many
different countries has shown how necessary this is for the
preservation of the Catholic faith. If, however, there is no
suitable Catholic school to which children can be sent, they
may be sent to a non- Catholic school provided that the proxi-
mate danger can be made remote by using the proper means,
and provided that the parents see to the religious instruction
of their children. In many countries, as in England, the
Bishops have reserved to themselves the decision as to whether
in any particular case these conditions are fulfilled. A priest,
therefore, should not take it upon himself to deny the sacra-
ments to parents who send their children to a non- Catholic
school; the case should be sent to the Bishop (cf. Can. 1113,
2. What has just been said applies specially to primary
and secondary schools, for the question about non- Catholic
universities is somewhat different. The Church would indeed
wish that all who desire it might be able to obtain a higher
education in a Catholic university. As this, however, is
impossible in England, the Holy See has permitted Catholic
parents to send their sons to Oxford or Cambridge on account
of the grave necessity, and because when a young man has
already received a sound secondary education among Catholic
surroundings, if there is any character in him, he can be
trusted to hold his own. Suitable safeguards, however, are
THE DUTIES OF PARENTS TO CHILDREN 181
prescribed for the young men who avail themselves of this
permission, among which is the obligation of attending Catholic
lectures which are provided by the Bishops.
3. In order that parents may fulfil their obligations towards
their children, the law of nature itself confers on them the
requisite authority and the right to look after their children
until these can provide for themselves. It would, then, be
against natural justice if children were removed from their
parents' control or if there were any interference with the
parental authority as long as it is rightly exercised. 1 Although
parental authority is derived from the law of nature, yet its
precise extent and its limits are not defined by natural law;
this is left to positive law, ecclesiastical and civil.
Parental authority extends to the person and to the property
of a child.
i. (a) The right to the custody of the person of a child
belongs to the father during his life, and after his death to
the mother. Until emancipation at the age of twenty- one or
until marriage a father can enforce his right by writ of habeas
corpus.
An action also lies for loss of services against anyone who
entices a minor away from the custody of his parents. More-
over, abduction of a girl under sixteen or under eighteen for
immoral purposes is rigorously punished by English criminal
law.
However, if a child who has reached years of discre-
tion chooses to depart from home, our courts will not
compel him to return, if the departure seems to be for his
benefit.
(b) A parent or one who is in loco parentis may moderately
chastise a minor who has been guilty of fault.
(c) The consent of the parent is required for the lawfulness
of a minor's marriage.
ii. The parent as such has no rights over the property of
his child according to English law. If, however, no other
guardian has been lawfully appointed, the father will be
regarded as the guardian of his child, and he will be compelled
to administer its property for its benefit, and he can be com-
pelled to render an account of his administration. Gifts
which have been freely made by children to their parents are
considered valid by our law, but there is a presumption against
their being free gifts, unless this is proved.
1 St Thomas, Summa, 1-2, q. 10, a. xa.
1 82 PRECEPTS OF THE DECALOGUE
4. The duties of parents extend to illegitimate as well as
to legitimate children. The duty of caring for an illegitimate
child falls primarily on the mother, who, before a year has
elapsed from its birth, may obtain from the magistrates a
maintenance order against the reputed father, providing for
the child's support and education at his expense.
A husband is bound by our law to support the children of
his wife by a former husband as well as his own.
CHAPTER III
THE DUTIES OF RELATIVES AND GUARDIANS
i. WHAT has been said concerning the mutual obligations of
parent and child applies proportionately to those of other near
relations. These are also bound to love each other, not only
out of charity, but out of piety, and they are under a grave
obligation of rendering each other assistance not only in
extreme but also in grave necessity. English law only en-
forces on relatives the obligation of maintaining a poor relation
who is unable to support himself when he would otherwise
be chargeable to the parish where he happens to be. Those
who are so compellable are the wife and husband, the father
and grandfather, the mother and grandmother or the children
of the pauper. The law of charity and piety obliges more
frequently and extends further.
2. Guardians are sometimes appointed according to law
to take care of the person and property of minors.
Parents are legally the guardians by nature and nurture
of the persons of their children until these reach the age of
twenty-one, as we saw above.
Of the many kinds of guardians recognized by English
law the following are still of practical importance: Statutory
guardians, guardians appointed by the high court and guar-
dians appointed for special purposes.
(a) Statutory guardians. By a statute of Charles II a
father may appoint by deed or by will a guardian or guardians
to have the custody of his infant child, and to manage its
property until it reach the age of twenty-one. The Guardian-
ship of Infants Act, 1886, made the mother on the death of
the father the guardian of her infant children, either alone if
no guardian was appointed by him, or jointly with the guardian
or guardians appointed by the father. The mother can also
by deed or will appoint one or more guardians to act after her
death and that of the father. She may also appoint a guardian
to act provisionally after her death jointly with the father.
(b) Guardians appointed by the High Court. An infant may
be made a ward of court by settling a sum of money on it
and bringing a suit for its administration. This may be done
183
1 84 PRECEPTS OF THE DECALOGUE
even though the father be still alive, or a testamentary guardian
has been appointed. Where the court is satisfied that it
would be for the good of the ward, it may remove a guardian
from his office and appoint another in his place, even though
the infant be not a ward of court.
(c) Guardians for special purposes are sometimes appointed
to consent to an infant's marriage, or for some other object
under different statutes.
A guardian has a right to the custody of the person of his
ward, and in general he exercises the rights, and is under the
obligations of a father towards his ward. He administers the
ward's property, and must render an account of his adminis-
tration.
No one may marry a ward of court or remove it out of the
jurisdiction without the court's permission.
The wishes of the father, as a general rule, according to
English law, must be followed with regard to the religion in
which a ward is educated by his guardian.
CHAPTER IV
THE OBLIGATIONS OF HUSBAND AND WIFE
BESIDES the obligations which are treated of under Marriage,
and the rights and obligations arising out of property belong-
ing to married people, which are discussed under the Seventh
Commandment, there are certain obligations arising from
marriage inasmuch as it places the husband in a ..position of
authority and the wife in one of subjection. A word must
here be said concerning their mutual obligations in this respect.
The wife becomes by marriage subject to her husband, and
owes him love, reverence, and obedience, as to a superior.
" Let women be subject to their husbands as to the Lord,"
says St Paul. " Because the husband is the head of the wife:
as Christ is the head of the Church. . . . Therefore as the
Church is subject to Christ, so also let wives be to their
husbands in all things." 1
However, a wife is not the slave or servant of her husband,
but rather his companion, and so, though subject and bound
to obey in all that relates to family life and conduct, yet she
should be treated with love, consideration, and deference, and
consulted in what concerns the family affairs.
The wife will commit grave sin if she shows great contempt
for her husband, habitually neglects his commands, and
arrogates his authority to herself without just cause.
The husband is bound to support his wife and family
according to English law, who therefore have a claim in justice
upon him as well as in piety. The husband sins grievously
by treating his wife with habitual harshness and neglect, and
by not providing for her necessities and those of her children.
In this latter case the wife would not be guilty of sin if she
took from her husband without his knowledge what was
necessary for the decent support of the family.
1 Eph. v 33-34.
185
CHAPTER V
THE DUTIES OF MASTERS AND SERVANTS
i. SERVANT is here understood in a wide sense so as to com-
prise both domestic servants and workmen who work for a
master. The relation in modern times arises out of a contract
freely entered into by the parties, and it is less intimate than
that which in ancient times subsisted between the lord and
the slave or serf. In spite of this, however, the nexus of cash
payment is not the only bond between master and servant.
By the very fact that one enters into the service of another, the
latter becomes his superior, assumes the duty of caring for
him, and in fitting proportion he acquires a claim to those
marks of honour and reverence which are due to all who
exercise authority over us. 1
2. Servants, then, owe to their masters reverence, fidelity,
and obedience.
(a) They are bound to show their masters due honour and
respect, and grave sin may be committed by displaying open
contempt for them, ridiculing them, and making known their
secret defects. " Whosoever are servants under the yoke, let
them count their masters worthy of all honour." 2
(b) They must faithfully discharge the duties imposed on
them by the nature of their charge. If they waste the time
which belongs to their master, wilfully neglect their duties,
damage or destroy the property of their master by not taking
ordinary care of it, they sin against justice and are bound to
restitution. If special charge of what belongs to the master
is committed to a servant, he will be obliged to guard it against
damage or loss caused by others, and he will sin against justice
and be bound to make restitution if he fail to do so. Where
no such special charge has been laid on a servant, he will only
be bound in charity, not in justice, to protect the property of
his master.
(c) A workman who does not live in his master's house will
be bound to obey his master's commands in all that relates
to the work that he undertook to do.
A domestic servant is a member of the master r s household,
1 St Thomas, Summa, 2-2, q. 102, a. I. ' 2 i Tim. vi i.
186
THE DUTIES OF MASTERS AND SERVANTS 187
and the obligation of obedience extends to what concerns
domestic discipline, as well as to the special work which was
expressly undertaken by the contract. " Servants," says
St Paul, " be obedient to them that are your lords according
to the flesh, with fear and trembling in the simplicity of your
heart, as to Christ: not serving to the eye, as it were pleasing
men, but as the servants of Christ, doing the will of God
from the heart, with a good will serving, as to the Lord, and
not to men." 1 Still one who contracted to be a cook would
not be bound to obey if ordered to do housemaid's work;
neither explicitly nor implicitly was such an obligation under-
taken when the contract was entered into.
These duties of a servant toward his master are touched
upon by Leo XIII in his encyclical letter on the condition of
the working classes, May 15, 1891. " Thus religion teaches
the labouring man and the artisan to carry out honestly and
fairly all equitable agreements freely entered into; never to
injure the property, nor to outrage the person, of an employer ;
never to resort to violence in defending their own cause, nor
to engage in riot and disorder ; and to have nothing to do with
men of evil principles, who work upon the people with artful
promises, and excite foolish hopes which usually end in useless
regrets, followed by insolvency."
3. The duties are not all on one side and the rights on the
other in the relation of master and servant. Each has his
rights and each his duties, and their good and the good of the
community largely depends on both sides faithfully and loyally
fulfilling their mutual obligations.
(a) A master must treat his servant not as a mere instrument
of production, but as a fellow- Christian: " Religion teaches
the wealthy owner and the employer that their work-people
are not to be accounted their bondsmen; that in every man
they must respect his dignity and worth as a man and as a
Christian; that labour is not a thing to be ashamed of if we
lend ear to right reason and to Christian philosophy, but is
an honourable calling, enabling a man to sustain his life in
a way upright and creditable; and that it is shameful and in-
human to treat men like chattels to make money by, or to look
upon them merely as so much muscle or physical power." 2
(b) " Again, therefore, the Church teaches that, as religion
and things spiritual and mental are among the working man's
main concerns, the employer is bound to see that the worker
has time for his religious duties; that he be not exposed to
1 Eph. vi 5-7. 2 Leo XIII, I.e.
1 88 PRECEPTS OF THE DECALOGUE
corrupting influences and dangerous occasions, and that he
be not led away to neglect his home and family or to squander
his earnings." 1 The general obligation of fraternal correction
will more frequently impose a duty on the master of ad-
monishing and correcting a domestic servant than an ordinary
workman of his.
(c) " Furthermore, the employer must never tax his work-
people beyond their strength or employ them in work unsuited
to their age or sex." 2
According to English common law, the contract between
employer and employed involves on the part of the former
the duty of taking reasonable care to provide appliances and
to maintain them in a proper condition, and so to carry on his
operations as not to subject those employed by him to un-
necessary risk. This common law liability has been further
increased and defined by the Employers' Liability Acts and
Workmen's Compensation Acts, which, however, will as a rule
only affect the conscience after the sentence of a competent
authority, except in so far as there was grave culpable negli-
gence on the part of the employer.
(d) The employer's " great and principal duty is to give
everyone a fair wage. Doubtless before deciding whether
wages are adequate, many things have to be considered; but
wealthy owners and all masters of labour should be mindful
of this, that to exercise pressure upon the indigent and the
destitute for the sake of gain, and to gather one's profit out
of the need of another, are condemned by all laws, human and
divine. To defraud anyone of wages that are his due is a
crime which cries to the avenging anger of heaven. Behold,
the hire of the labourers . . . which by fraud hath been kept
back by you, crieth aloud; and the cry of them hath entered into
the ears of the Lord of Sabaoth. 3
" Lastly, the rich must religiously refrain from cutting down
the workmen's earnings, whether by force, by fraud, or by
usurious dealing; and with all the greater reason because the
labouring man is, as a rule, weak and unprotected, and because
his slender means should in proportion to their scantiness be
accounted sacred. Were these precepts carefully obeyed and
followed out, would they not be sufficient of themselves to
keep under all strife and all its causes ?" 4
Sums must not be deducted from a servant's wages on
account of temporary illness, though by English law a master
1 Leo XIII, I.e. 2 ibid.
3 Jas. v 4; Can. 1524. 4 Leo XIII, I.e.
THE DUTIES OF MASTERS AND SERVANTS 189
is not bound to provide medical aid or medicines for a sick
servant, though he is for an apprentice. If he sends for
medical assistance for a servant whilst under his roof, he is
liable.
In the same encyclical of Leo XIII a general rule is laid down
for deciding what a fair wage is : " Let it, then, be taken for
granted that workman and employer should, as a rule, make
free agreements, and in particular should agree freely as to
the wages; nevertheless, there underlies a dictate of nature
more imperious and more ancient than any bargain between
man and man namely, that the remuneration must be suffi-
cient to support the wage- earner in reasonable and frugal
comfort. If through necessity or fear of a worse evil, the
workman accept harder conditions, because an employer or
contractor will afford him no better, he is made the victim of
force and injustice."
The workman, then, has a right to a living wage, and the
employer who grows rich by sweating his work-people com-
mits a sin against justice and is bound to make restitution of
his ill-gotten wealth. If, however, the employer gives as
good wages as he can afford, or as good as the labour is worth,
he will be excused from any sin against justice ; occasionally
in bad times he may be bound out of charity to give employ-
ment without profit to himself or even at a personal loss.
4. It is sometimes the duty of the State to interpose its
authority in order to settle labour questions. As Leo XIII
says : " If by a strike, or other combination of workmen, there
should be imminent danger of disturbance to the public peace ;
or if circumstances were such that among the labouring popu-
lation the ties of family life were relaxed ; if religion were found
to suffer through the operatives not having time and oppor-
tunity afforded them to practise its duties; if in workshops
and factories there were dangers to morals through the mixing
of the sexes or from other harmful occasions of evil; or if
employers laid burdens upon their workmen which were un-
just, or degraded them with conditions repugnant to their
dignity as human beings; finally, if health were endangered
by excessive labour or by work unsuited to sex or age in
such cases there can be no question but that, within certain
limits, it would be right to invoke the aid and authority of the
law." A little further on Pope Leo again refers to strikes:
" When work-people have recourse to a strike, it is frequently
because the hours of labour are too long, or the work too hard,
or because they consider their wages insufficient. The grave
i go PRECEPTS OF THE DECALOGUE
inconvenience of this not uncommon occurrence should be
obviated by public remedial measures, for such paralyzing of
labour not only affects the masters and their work-people alike,
but is extremely injurious to trade and to the general interests
of the public; moreover, on such occasions, violence and
disorder are generally not far distant, and thus it frequently
happens that the public peace is imperilled. The laws should
forestall and prevent such troubles from arising; they should
lend their influence and authority to the removal in good time
of the causes which lead to conflicts between employers and
employed." 1
It is unlawful for workmen to strike when by so doing they
violate a just contract which they have freely entered into,
or when they cannot hope to gain anything substantial, so
that there is no adequate compensation for the sufferings,
losses, and risks which generally accompany a strike. It is
wrong to use violence and threats to compel other workmen
to strike against their will, or to prevent them accepting work
if they desire to do so.
If, however, other means of obtaining redress or of securing
their rights have failed, it is not wrong for workmen to strike
in order to obtain a diminution of excessive hours of toil, or a
just wage, or other just, reasonable, and adequate advantage.
5. The contract of hiring may be terminated by mutual
consent of the parties concerned, or for just cause by one of
the parties, provided that the laws and customs which regulate
the matter be duly observed. Generally speaking, a month's
notice, or a month's wages, is required by English /law to
determine a general hiring of a domestic servant. If, how-
ever, the servant is incompetent to do what he undertook, is
habitually disobedient, or is guilty of immorality, or un-
lawfully absents himself from his work, he may be dismissed
without notice.
1 Leo XIII, I.e.
CHAPTER VI
THE DUTIES OF MASTERS AND SCHOLARS
i. SCHOOLMASTERS and schoolmistresses are put in the place
of the parents to educate children in letters and good conduct.
They therefore to a certain extent share the obligations and
the rights of parents. Furthermore, they are bound in justice
by contract to fulfil the special duties which are annexed to
their office of training the children committed to their charge.
2. Pupils are bound to love, reverence, and obey their
masters and mistresses in all things that pertain to their educa-
tion in letters and morals. However, in estimating the gravity
of sins of disobedience toward masters and mistresses, we must
consider not only whether the matter be grave and there be
a serious intention of imposing an obligation, as in other cases
of disobedience, but also whether t the authority of the master
or mistress enables them to give a precept which binds under
pain of grave sin. Such ample authority is usually not com-
mitted to inferior masters and mistresses.
191
CHAPTER VII
THE DUTIES OF ECCLESIASTICAL AND CIVIL RULERS
AND THEIR SUBJECTS
i. ALL those to whom the care of souls is committed in the
Church of God are bound by divine precept and by the very
nature of their office to fulfil the duties of their charge. 1 If
they fail in their duty, they sin not only against charity and
obedience, but also against justice; for everyone who volun-
tarily undertakes an office implicitly thereby undertakes to
discharge the duties annexed to it. In general, therefore,
ecclesiastical superiors are bound to love, watch over, and
instruct by word and by example those committed to their
charge. The special obligations of each one depend on the
office which he holds, and are treated of elsewhere.
2. Subjects also owe to their ecclesiastical superiors love,
reverence, obedience in all that belongs to their office, and
temporal support. This is obvious from what has already
been said, and it is inculcated in several places of Holy Writ. 2
3 . It has been the constant teaching of the Catholic Church
that all public and legitimate authority is of divine right, in
the sense that God is the Author of man's nature by which
he is a social animal, formed to live in society, which neces-
sarily implies a distinction of rulers and ruled. The rulers
may, indeed, be designated in various ways, their power may
be more or less absolute; this power may be in the hands of
one or of many, but it is derived from God, the Author of
man's nature and of human society. This is the teaching of
St. Paul : " Let every soul be subject to higher powers ; for
there is no power but from God; and those that are, are
ordained of God. Therefore he that resisteth the power,
resisteth the ordinance of God. And they that resist, purchase
to themselves damnation." 3 As Leo XIII says in his encyclical
letter, Diuturnum, June 29, 1881, this doctrine is taught in
many passages of Holy Writ, and has been constantly incul-
cated by the Catholic Church.
i
1 Trent, sess. 23, c. i, de Ref.
2 i Tim. v 17; Heb. xiii 17.
3 Rom. xiii 1-2.
192
ECCLESIASTICAL AND CIVIL RULERS 193
In English-speaking countries the people have a large share
in the election of their rulers, and such an important duty
should be faithfully and religiously fulfilled. There may easily
be a moral obligation to vote at elections in order to prevent
the election of one who would do grave public harm if elected,
or in order to secure the election of one whose election would
be a great public benefit. If the only choice lies between
candidates who are equally good or equally bad, there will be
no moral obligation to vote.
Those who hold any civil office are bound to perform its
duties faithfully, not only out of charity, but out of justice.
4. For Catholics it is a matter of religious obligation to love,
reverence, and obey those who wield civil power. As Leo XIII
teaches: " We are bound to love dearly the country whence
we have received the means of enjoyment this mortal life
affords, but we have a much more urgent obligation to love
with ardent love the Church to which we owe the life of the
soul, a life that will endure for ever. . . . Moreover, if we
would judge aright, the supernatural love for the Church and
the natural love of our own country proceed from the same
eternal principle, since God himself is their Author and
originating Cause. . . . Law is of its very essence a mandate
of right reason, proclaimed by a properly constituted authority,
for the common good. But true and legitimate authority is
void t of [sanction, unless it proceed from God, the supreme
Ruler and Lord of all. The Almighty alone can commit
power to a man over his fellow-men ; nor may that be accounted
as right reason which is in disaccord with truth and with
divine reason ; nor that held to be true good which is repugnant
to the supreme and unchangeable good, or that wrests aside
and draws away the wills of men from the charity of God.
Hallowed, therefore, in the minds of Christians is the very idea
of public authority, in which they recognize some likeness
and symbol, as it were, of the divine Majesty, even when it
is exercised by one unworthy. A just and due reverence to
the laws abides in them, not from force and threats, but from
a consciousness of duty; for God hath not given us the spirit
of fear." 1
1 Leo XIII, Encyclical Letter, January 10, 1890.
13
PART V
THE FIFTH COMMANDMENT
THE Fifth Commandment is, " Thou shalt not kill." 1
The crime of homicide is primarily forbidden by this
precept, but inasmuch as quarrelling, fighting, wounding, lead
up to homicide, these and similar acts are secondarily for-
bidden. Implicitly, the precept prescribes the preservation of
life, since death will follow if care be not taken to preserve life.
CHAPTER I
ON SUICIDE
i . SUICIDE, or the killing of one's self, when one's own death
is the direct and immediate object of the will, is forbidden
by the Fifth Commandment and is grievously sinful. It is
the same when death is not the direct object of the will, if
some act is done of which the only immediate effect is the
destruction of one's own life; for in that case by willing the
action I implicitly will the effect. And so if, out of bravado,
I jumped from the top of the tower of Westminster Cathedral
into the street below, I should be guilty of the grave sin of
suicide, even though that was not my direct object.
The reason why suicide is unlawful is because we have not
the free disposal of our own lives. God is the author of life
and death, and he has reserved the ownership of human life
to himself. We cannot leave the post where he has stationed
us without his authority. Moreover, a man belongs to his
country, and so suicide is a crime against the commonwealth,
and as such is punished. There is a controversy among
divines as to whether it would be lawful for a malefactor who
had been condemned to death and entrusted by public
authority with the execution of the sentence against himself
to take his own life. Many hold that it would be lawful, for
there seems no conclusive reason why the State might not
appoint a man to be his own executioner.
1 Exod. xx 13.
194
ON SUICIDE i9S
2. It is not unlawful to do something which will cause one's
own death provided that the action has some other immediate
and good effect of great importance, which counterbalances
the loss of human life, and this is not intended. This is
merely an application of the principle of a double effect which
was explained in the Book on Human Acts. The captain of
a man-of-war, for example, which in time of war is in danger
of falling into the hands of the enemy, might blow up the
ship in order to prevent so great a disaster befalling his
country, although the act would cause his own death and that
of others in the ship. He does not intend the destruction of
human life; the immediate effect of his action is to prevent
the ship falling into the enemy's hands. The public advantage
counterbalances the loss.
3. Similarly, for good reason I may undertake dangerous
work, go to unhealthy climates, or lead a kind of life which
will lessen the number of years that I shall live. Somebody
must do such things ; they are useful to the community or to
myself, and I do not intend the shortening of my life. It
would be wrong to expose my life to probable danger merely
for the sake of getting money or notoriety; such reasons do
not justify us in seriously risking human life.
4. As we have not the ownership of life, so neither are we
the owners of our limbs so as to be able to dispose of them at
will. A man is not justified in mutilating himself in order to
avoid military conscription, or to excite commiseration, or to
gain money. The amputation of a limb is permissible when
such an operation is necessary in order to preserve life; for
we may sacrifice a part for the safety of the whole.
5. We are obliged to take ordinary means to preserve our
lives, for to do otherwise would be virtually to commit suicide.
There is no obligation to take extraordinary, unusual, or very
painful or expensive means to preserve our lives. And so
one in feeble health, who will probably die if he spends the
winter in England, is not bound to expatriate himself and go
and live in a milder climate. Nor am I bound to undergo a
painful and costly operation in order to save my life; I may
if I like choose rather to die, unless my life is of great im-
portance for the common good, for then the public good must
be considered first. Except in such a case as this, a superior
could not oblige a subject to undergo a very painful operation
or to submit to the amputation of a leg; obedience to human
authority does not seem to extend to such matters as these.
CHAPTER II
ON CAPITAL PUNISHMENT
i . THE right of the State to punish criminals with the infliction
of death is either expressly conceded or clearly supposed in
Holy Scripture. 1 It is sufficiently evident, too, from natural
reason, for the State should be endowed with all those powers
which are necessary to secure its end, the temporal happiness
of its citizens. But it would not be possible to keep human
passion within bounds and ensure the safety of the lives and
property of its peaceful citizens, unless the State had the
power of inflicting death on those who have been guilty of
great crimes. The practice of the most civilized states con-
firms this view, and experience seems to demonstrate its truth.
If the time should ever come when the infliction of less severe
penalties will suffice to punish crime and safeguard life and
property, then capital punishment should be abolished, but
that time does not seem to be at hand yet.
If the State has the right to deprive a criminal of life,
a fortiori it may inflict lesser punishments, such as flogging
and imprisonment. Indeed, certain persons who have
authority over others, such as fathers of a family, captains
of vessels at sea, and schoolmasters, have the power to inflict
smaller punishments in moderation on delinquents under their
authority. Before capital punishment can be inflicted the
essentials of a judicial process by which a grave crime is
brought home to the delinquent must be gone through. For
the right of capital punishment belongs to the State as such,
to the public authority, and so before punishment is inflicted
it should be proved that the crime was committed by the
person charged, and judicial sentence according to law should
be passed upon him. In certain cases when the ordinary
process of law cannot be followed, and there is danger in
delay, the public authority might empower anyone to kill a
notorious criminal, but in settled times and ordinarily this
should not be done. It would be a very dangerous remedy
for crime if the State empowered its citizens to punish delin-
quents without previous trial and conviction. The innocent
1 Rom. xiii 4.
196
ON CAPITAL PUNISHMENT 197
sometimes suffer in spite of the elaborate precautions and
delay of modern criminal trials. If these were abolished and
every citizen became a judge and executioner for crime, the
remedy would be far worse than the disease. The Roman
law and that of some more modern states permitted a father
or husband to kill a daughter or wife found in adultery. Such
laws were not approved by the Church, and they could not
in conscience justify one who took advantage of the immunity
they gave to commit so cruel a murder.
2. To take means to safeguard the public welfare, and
especially to inflict the punishment of death on criminals,
belongs to the public authority and not to private citizens,
and so these cannot lawfully arrogate to themselves the power
of inflicting capital punishment. Lynch-law, then, is against
sound principles of morality. In places where no effective
government exists, the people should constitute a government
to safeguard the common interests and to punish crime; this
duty must not be left in private hands.
I quote the following from the Encyclopedia of the Laws of
England, s.v. Escape : " Considerable controversy has from
time to time arisen on the question whether the officers of
the law or persons entitled to apprehend or detain a person
accused or suspected of crime are entitled to kill him on
pursuit if they cannot otherwise stop him, or to kill him to
prevent his escape after arrest. It seems to be agreed that
the custodian is not entitled to kill to prevent escape from
custody on a civil charge, nor from custody on a charge of
misdemeanour. Where the escaped prisoner is accused of
a capital offence, the custodian appears to be entitled to kill
him if he cannot otherwise retake him; but it is not clear
whether the mitigation of the severity of the law as to punish-
ments for felony during this century (the nineteenth) can be
regarded as reducing the right of the officers of the law to kill
a fugitive from justice. With respect to convicts under sentence
of penal servitude escaping from prison, questions arose in
1896 owing to the shooting of an escaping convict on Dartmoor
which cannot be regarded as settled, and which have led to
a revision of the Convict Prison Rules."
CHAPTER III
ON JUSTIFIABLE HOMICIDE
i. IN defence of my own life from unjust attack I may use
whatever violence is necessary and even go to the length of
killing the aggressor, if I cannot otherwise save my life. This
right of self-defence all laws, human and divine, concede, as
Innocent III declared. Nature herself teaches us that an
act which is necessary for self-defence is lawful, and even if it
lead to the taking of the life of the unjust aggressor it does
not cease to be lawful. A higher value must be set on the
life of the innocent than on that of the guilty, especially when
the guilty one is the cause of his life being put in jeopardy.
No one is justified in using greater violence than is necessary
for the purpose of self-defence, so that if by striking or wound-
ing an assailant of my life I can effectually defend myself, I
am not justified in killing him. On the same principle no
private person can take vengeance for violence which has
already been done, by offering violence in return; vindictive
justice is reserved for public authority, at any rate in more
serious matters. Nor may one whose life is threatened
anticipate the attack; defence is only lawful when the attack
is practically being made or is at any rate imminent. Unless
the attack is practically imminent it is always possible to resort
to other means than homicide for the defence of one's own
life; one may invoke the protection of the law or at least fly
the intending assailant.
2. Under the same limitations it is lawful to kill the assailant
not only of one's life, but also of limb, of chastity, and of
property. For all these goods belonging to an innocent
person may be lawfully defended by him even at the cost of
the life of the unjust assailant of them, who is responsible for
his own death by his unwarrantable action. When it is said
that we may kill an unjust assailant in defence of property,
it is supposed that the property which is threatened is of con-
siderable amount. Innocent XI condemned a proposition
which asserted that, " As a rule I may kill a thief for the
preservation of a gold piece." This proposition is false, for
a rich man would not be justified in shooting a thief whom he
198
ON JUSTIFIABLE HOMICIDE 199
saw walking off with one of his silver spoons. If, however,
the thief threatens property of considerable value say, twenty
pounds or so and the only way of saving the money is by
taking the life of the thief, this would be lawful. Moreover,
when a highwayman demands my purse or my life, I am not
bound to hand him my purse, even though it contain little
money ; I may always defend myself from such unjust attacks,
even though it finally involves the death of the aggressor.
3. It is not lawful to kill another who attacks my honour
with insulting words. The contrary used to be held by some
theologians, but the doctrine was condemned by Alexander VII
and Innocent XI. The reason of the difference between this
case and the foregoing is that verbal insults are often not of
very serious consequence ; they are better and more effectively
met by quiet contempt than by being taken seriously, and that
would be a perilous doctrine which taught that a man might
avenge an insult with the death of the offender. What con-
stitutes an insult is often a very subjective question, and the
results of the doctrine would be deplorable.
4. What one may lawfully do, that, as a rule, another may
help him to do ; and so I may kill or maim an unjust assailant
not only of my own life, limb, chastity, or property, but when
any innocent person is similarly threatened I may also do the
same in his defence. Although I may lawfully do this, yet
there is seldom an obligation of doing it, for the obligation
would only arise from charity, and as we saw above, this virtue
does not usually bind with such serious inconvenience as
would always be involved in taking life in defence of another.
Those who have charge of the public peace and security are
more strictly bound to perform their duty of protecting life
and property even at the sacrifice of the lives of wrongdoers.
CHAPTER IV
ON KILLING THE INNOCENT
i . IT is never lawful directly to kill the innocent, or, in other
words, it is never lawful to kill the innocent when the death
is intended in itself, or when it is inflicted as a means to the
attaining of some other object. Such an act is expressly
forbidden by God : " The innocent and just person thou shalt
not put to death." 1 Reason, too, teaches us the same truth;
for if ever it were lawful directly to kill the innocent, it would
be so when such a death would be of great advantage to the
commonwealth. But even to save the State an innocent
man's life must not be taken directly, for the State exists that
good men may lead honourable and peaceful lives; the State
is for the good citizens, not the good citizens for the State.
Not even the good of the State, then, makes it right to take
an innocent man's life, and if that does not justify the act,
nothing does.
2. The death of the innocent may be permitted, not in-
tended, when it follows from some action lawful in itself which
also produces an equally immediate and good effect, and when
this counterbalances the evil effect. This, again, is but the
application of the principle of a double effect, and it is evident
from what has been said before. The general of an army
who orders the bombardment of a beleaguered town knows
that his order cannot be executed without killing perhaps
many innocent non-combatants, yet the action is not unlawful.
3. Casual homicide which was not intended in itself, but
which was the consequence of doing some dangerous action,
as furious driving in a frequented street, is imputable to the
agent if he adverted to the probable danger of killing someone.
If such probable danger did not exist, or was not adverted to,
casual homicide will not be imputable in conscience, although
if the action be forbidden by law, even on other grounds than
the chance of its causing another's death, and someone is
killed by it, English law punishes it as manslaughter.
4. It is usual to treat here of abortion, and of certain surgical
operations concerned with child-bearing. Abortion is the
1 Exod. xxiii 7.
200
ON KILLING THE INNOCENT 201
premature ejection of the living foetus. The human foetus
reaches maturity about nine months after conception, but it
is capable of living even if born a considerable time before
maturity. A child may live when born at seven months or
even somewhat earlier, especially if artificial means are taken
for preserving its life. When the fcetus is ejected at such a
time that in the judgement of a skilled medical man it will
probably live, this is called acceleration of birth rather than
abortion in the strict sense. We are here concerned with
the lawfulness of procuring abortion and of performing such
operations as craniotomy and embryotomy, which destroy the
life of the fcetus. There is only question of the living, not of the
dead, fcetus, as is obvious.
5. Inasmuch as it is never lawful directly to kill the innocent,
it is never lawful directly to procure abortion at a time when
there is no probability that the foetus can live outside the
mother's womb. This is clear, for the fcetus is a human
being, with a human soul, which, as is commonly held by
theologians, is infused into it by God at the moment of con-
ception ; it has, then, as much right to live as anyone else, and
it certainly is innocent of all personal crime. To deprive it
directly of the medium in which alone it can live is to kill it
directly, just as to deprive a man of air by plunging him under
water is to kill him directly. The direct procuring of abortion,
then, is never allowed, inasmuch as it is the direct killing of
the innocent, and intrinsically wrong. In the same way,
anticipated homicide and a grievous sin are committed when-
ever means of whatever sort are taken to prevent conception.
6. However, just as the indirect killing of the innocent is
lawful for a just cause, as we have seen, so a pregnant woman
who is suffering from disease or tumour, or any complication
which threatens life, may lawfully adopt the necessary means
to save herself, even if what is a remedy for her causes the
death of the foetus. In all these cases we have but the applica-
tion of the principle of a double effect ; the mother is not bound
to sacrifice her life by abstaining from adopting the remedy
indicated, especially as her own death would also involve the
death of the child. Thus we may approve of the following
solution by Dr. Capellman of the " case where the uterus with
the foetus is locked in the upper strait, as may happen through
retroversion, sinking, and prolapsus of the pregnant womb.
If all other known means of turning or replacing the uterus
fail, I believe it to be allowable to induce abortion indirectly,
by procuring the discharge of the waters, or by the perforation
202 PRECEPTS OF THE DECALOGUE
of the foetal membranes. " x On the same principle P. Antonelli
thinks that it is lawful to remove an ulcerated womb which
is threatening the life of a pregnant mother though the opera-
tion cause the death of the foetus, as also to remove an extra-
uterine foetus whose further growth would cause the certain
death of the mother. 2
All who unlawfully procure abortion incur the penalty of
excommunication, the absolution of which is reserved to the
Bishop by Canon 2350.
7. Craniotomy, or any other similar operation which has
for its immediate and direct effect the destruction of the life
of the foetus, is a direct killing of the innocent, and is never
allowed. If the child is already dead, there is of course no
difficulty in permitting craniotomy or embryotomy, but if it is
still alive it is not lawful to kill it, even if otherwise both child
and mother were certain to die. Evil must not be done that
good may come of it. The end does not justify the means.
Some medical men consider the foetus, until it is born, as a
portion of the mother which may be destroyed to save her life.
This view is not in keeping with Christian principles, according
to which the child has a soul of its own, and has its own inde-
pendent right to live.
Some theologians used to think that such operations were
lawful if the mother's life could not otherwise be saved, because
the child might be considered a materially unjust assailant of
its mother's life, and so be lawfully killed; or because when
there is a conflict of rights the stronger right should prevail.
However, in no sense can it be allowed that the child is an
unjust assailant of its mother's life ; it is where nature placed
it, through no fault of its own, and it has a right to be there
and to be born. If either is an unjust assailant of the other's
life, it is the mother, who voluntarily undertook the obliga-
tions of motherhood. In the same way, when the stronger
of two conflicting rights prevails, this is due to the fault of
the other party, and such fault is out of the question in this
case. This doctrine is now theologically certain after the
repeated declarations of the Holy See that no operation which
tends directly to the destruction of the life of the foetus is
lawful.
When the child cannot be born in the natural way, and the
life of both mother and child is in danger, Caesarian section
or some similar operation may be, and should be, performed,
1 Pastoral Medicine, p. 16.
2 Medicina pastoralis, p. 220.
ON KILLING THE INNOCENT 203
by which the lives of both may very probably be saved. The
operation which takes its name from Dr. Porro, and which
consists in removing the uterus together with the foetus,
requires some special reason to make it lawful, for such muti-
lation of the mother is only allowed when it is necessary in
order to save life.
In all operations which involve danger to the life of the
child, Catholic parents should be careful to have the living
foetus baptized, which may be done by the doctor or nurse
while it is still in the womb. But according to Canon 746
this should not be done as long as there is any hope of the
child being born alive.
CHAPTER V
ON DUELLING
i. A DUEL is defined to be a premeditated and prearranged
combat between two persons with deadly weapons, and usually
in the presence of at least two witnesses, called seconds, for
the purpose of deciding a quarrel, avenging an insult, or
clearing the honour of one of the combatants or of some third
party whose cause he champions.
A duel, then, is a premeditated and prearranged single
combat, for if two persons begin to quarrel and then come
to blows, it is not a duel even if death be the result. Nor is it
a duel if two enemies meet by accident and begin straightway
to fight. A duel is a combat with deadly weapons, so that
a fight with sticks or with the fists is not a duel. Although
seconds are commonly present, yet their absence would not
prevent a single combat from being a duel if the other con-
ditions were verified. The duel is for the purpose of deciding
a private quarrel, and for such a purpose it is unlawful even
if it have the sanction of public authority, for there are other
and lawful means of settling such matters. A single combat
between champions of hostile nations entered into by public
authority for the purpose of terminating the war, or giving
courage to the army, would not be a duel, and might be
permitted.
2. It is never lawful to fight a duel by private authority,
for it obviously exposes the parties to grave risk of killing or
wounding, or of being killed or wounded, and this is never
lawful by private authority except under the conditions which
justify killing in self-defence, and these are not verified in
the duel.
The Council of Trent 1 very emphatically condemned duelling
as a detestable practice and excommunicated the guilty parties,
their seconds and abettors, as well as emperors, kings, and
princes who permit it in their territories. This excommunica-
tion is renewed by Canon 2351, and the power of granting
absolution if it has been incurred is reserved to the Pope.
Benedict XIV, by a constitution dated November 10, 1752,
1 Sess. 25, c. 19, de Ref.
204
ON DUELLING 205
condemned the following propositions as false, scandalous, and
pernicious :
" (a) A military man who, unless he offer or accept a duel,
would be considered cowardly, timid, worthless, and unfit
for office in the army, and so would be deprived of his post by
which he gains support for himself and his family, or would
for ever lose all hope of promotion otherwise due to him,
would incur neither fault nor penalty if he offered or accepted
a duel.
" (b) Those who accept or challenge to a duel for the sake
of defending honour or avoiding disgrace may be excused
when they know for certain that the combat will not come
off, inasmuch as it will be prevented by others.
" (c) A general or officer in the army who accepts a duel
through serious fear of losing reputation or office does not incur
the penalties inflicted by the Church on those who fight a
duel."
The contradictory of these false propositions must be held
by all who admit the authority of the Church.
3. Clement VIII, in a constitution dated September i, 1592,
declared that those incurred the penalties of duelling who
fought under the stipulation that they would stop after a
certain number of blows, or as soon as either was wounded
or blood was drawn. Grave sin, then, would be committed
by challenging or accepting a duel even under these conditions,
at least on account of the scandal and disobedience to authority,
if not on account of the danger.
By English and American law duelling is illegal, and if death
be the result, it is regarded as murder, and the seconds are
liable to punishment as accessories.
CHAPTER VI
ON WAR
i. WAR, or an armed struggle between sovereign states, is
defensive when it is undertaken to resist attack; otherwise it
is offensive when undertaken to avenge an injury, or in vindi-
cation of a right.
2. When a quarrel has arisen between two sovereign states,
if it is clear that one of the parties is in the wrong, it is bound
to make reparation to the offended party. In national quarrels,
however, this is seldom the,,case ; as a rule, international disputes
are matters of great complexity, and it is very difficult to say
on which side right and justice lie. In ordinary cases, then,
defensive war is always lawful, for if individuals have the right
of self-defence the same right must a fortiori be conceded to
a sovereign state. Even offensive war is lawful, provided that
certain conditions be fulfilled. This is the certain teaching of
Catholic theology, although the Church constantly prays to
be delivered from all wars and from the terrible evils to which
they give rise. Although war is a great evil, yet it is some-
times a hard necessity if still greater evils are to be avoided.
For there is no higher tribunal to which sovereign states can
have recourse to settle their disputed rights, and nothing is left
but the final arbitrament of the sword. In modern times
arbitration courts have been established, and they have done
useful work, but cases arise in which their aid cannot be
invoked with effect.
3. The conditions on which war may be lawfully waged
are three :
(a) The public authority of a sovereign state is requisite to
declare war, for war, except in just defence, cannot be made
on private authority, or by a less than sovereign state; for
private persons and subject states can always have recourse
to higher authority for the vindication of their rights.
(b) A just and weighty cause is necessary, for the cause
should be such as to outweigh the grave evils and risks which
always accompany war. Such causes, in the judgement of
divines, are : the retaking of a conquered country or rebellious
province, the avenging of a grave insult or injury offered to
206
ON WAR 207
the State, the freeing of the unjustly oppressed, the refusal of
infidel states to allow the Gospel to be preached in their
dominions. There is considerable difference of opinion as
to whether certainty of the existence of a sufficient cause is
required or not for the lawfulness of a war. Some divines
hold that a probability of right is sufficient, for with such
a probable right a private person may commence an action at
law, and states should not be in a worse position than private
persons in the prosecution of their claims. However, on
account of the grave public evils connected with war, and
because it is unlawful to deprive another of what he possesses
on the ground that it is only probably mine, it would seem
that at least a more probable right or even a moral certainty
of right is required on the side of the state that begins the war.
(c) There must be an upright intention of advancing the
cause of good or preventing evil. Mere delight in the excite-
ment of war, or the desire of showing one's prowess or obtain-
ing promotion, would not justify war.
When the end of the war has been sufficiently obtained the
victorious party should be ready to make peace on proper
guarantees being given.
4. Where conscription exists or soldiers have already en-
listed before the outbreak of war, they are not bound to make
inquiries about the origin of the war in order to satisfy their
consciences of its justice ; they may presume that their country
is in the right unless it is evident that it is in the wrong, and
in doubt they are bound to obey the commands of their lawful
superiors. If the war is clearly unjust it only remains for the
conscientious soldier to abstain from inflicting unjust damage
on the enemy, otherwise he will be a co-operator in injustice.
Volunteers who had not enlisted at the outbreak of war are
bound to satisfy their consciences as to its lawfulness before
they take any part in it, just as they are bound to form a morally
certain conscience about the lawfulness of any action that they
undertake, as we saw in the Book on Conscience.
5. In a just war all means that conduce to the end of gaining
victory over the enemy are lawful, provided that they are not
against the law of nature and international law or agreement.
International agreements are only binding if they are faithfully
adhered to by the adverse party. In modern war it is the
practice to spare the persons and property of non- belligerents
as. far as possible. In naval warfare not only the enemy's
ships of war may be attacked and taken, but his merchantmen,
and any British vessel or vessel of an ally trading with or
2o8 PRECEPTS OF THE DECALOGUE
acting in the service of the enemy at war with England, or any
neutral vessel engaged in the same way or in the carriage of
contraband, and blockade runners, may be captured and made
lawful prize by duly commissioned British ships. Booty of
war on land is restricted to arms, ammunition, and military
provisions and stores. Private property on land is no longer
liable to capture and confiscation, but requisitions and con-
tributions of men for labour, money, victuals, etc., are still
levied on the invaded territory by duly qualified officials of
the invading army. Beyond these limits, or at least beyond
what is permitted by lawful authority, it is not allowed to
appropriate private property belonging to the enemy.
PART VI
THE SIXTH AND NINTH COMMANDMENTS
IT is usual to treat of these two Commandments together, for
the Sixth, " Thou shalt not commit adultery," 1 in expressly
forbidding the chief sin, implicitly forbids all other external
sins against the laws of marriage, and the Ninth, " Thou shalt
not covet thy neighbour's house, neither shalt thou desire his
wife," 2 forbids internal sins of covetousness and lust. The
general doctrine concerning internal sins was given in a former
Book ; the special doctrine about covetousness in so far as it is
against justice is clear from what was said about avarice and
what will be said later about justice ; the doctrine about external
sins of lust will be evident from what has to be said in this place.
CHAPTER I
THE NATURE OF IMPURITY
i . THE means devised by God for the preservation and increase
of the human race is the union of the sexes. This union has
for its primary object the procreation of children, who require
for their proper education the long and assiduous care of both
father and mother. Nature, then, as well as the law of God
and of the Church, requires that children should only be
begotten of parents joined in lawful and indissoluble wedlock.
As nature has taken care that the individual should take the
food and drink necessary for his personal support by giving
him the spur of appetite for nourishment and pleasure in
taking it, so the same great Mother has taken care of the race
by joining venereal pleasure to the act of procreating children.
This venereal pleasure is lawful when indulged in between
married people and according to the laws of marriage. In
all other cases it is unlawful, and is forbidden by the Sixth
and Ninth Commandments.
Venereal pleasure must be distinguished from sensual and
from venereo-sensual pleasure. Venereal pleasure has its seat
1 Exod. xx 14. a Exod. xx 17.
i. 309 14
2io PRECEPTS OF THE DECALOGUE
in the genital organs, and is caused by their motions, the
irregular motions of the flesh. Sensual pleasure is other than
venereal, and rises from indulgence of the senses, from the
contemplation of a beautiful picture, from listening to sweet
music, from touching the glossy and soft coat of a cat. This
sensual pleasure is morally harmless in itself, but there is a
certain kind of pleasure which is sensual in its origin but which
is connected with, and ordinarily causes, venereal pleasure.
It arises from such acts as voluptuous kissing, and is called by
divines venereo-sensual. On account of its connection and
tendency, venereo-sensual pleasure is evil, and ordinarily is
more or less sinful, as we shall see in what follows.
Sins of impurity are consummated or non-consummated.
Peccata consummata procedunt usque ad perfectam vol-
uptatem veneream, quae habetur per copulam vel per pollu-
tionem. Sunt consummata juxta naturam si exinde generatio
prolis sequi possit, aliter sunt consummata contra naturam.
Non- consummata peccata sunt aspectus, tactus, colloquium
impudicum, quae non pertingunt usque ad perfectam vol-
uptatem veneream.
2. All sins of impurity of whatever kind or species are of
themselves mortal. This doctrine is taught in such passages
of Holy Scripture as the following: i Cor. vi 9-10; Gal. v 19;
Matt, v 28. Moreover, as we saw above, those sins are
grievous which cause great harm to society or to the individual ;
but there is scarcely any cause so prolific of public and private
evil of all sorts as sins of impurity, so that we must conclude
that they are grievous even by the light of reason. Further-
more, all sins of impurity, if voluntary in themselves and fully
deliberate, are mortal ; or in other words, it is grievously sinful
directly to seek any even slight unlawful venereal pleasure, or to
consent to it deliberately even when it has not been directly
sought.
This doctrine is the approved teaching of theologians, and
it has a rational basis, inasmuch as the tendency of men to
these sins is so strong and their weakness so great, that slight
indulgence in venereal pleasure almost necessarily leads to grave
excesses, so that even in light matter there is the whole reason
of the prohibition, and so all sins of impurity, if fully deliberate
and voluntary in themselves, are mortal, and there are none
that are venial merely on account of parvity of matter.
On the other hand, if venereal pleasure is not voluntary in
itself but only in its cause, nor deliberately consented to when
it arises, although it was foreseen that it would follow from
THE NATURE OF IMPURITY an
some other action, as from reading a lascivious book, or looking
at an immodest object out of curiosity, it may be only venially
or it may be mortally sinful, according to circumstances. In
general, if in the case in question there is proximate danger
of giving consent to the impure pleasure, or if its cause is of
its nature such as to occasion great venereal pleasure, this
will be mortally sinful even when only indirectly voluntary;
in other cases it will be only venially sinful. 1 This same
principle will guide us in questions concerning the greater or
less malice of venereo-sensual pleasure.
1 Cf. Book I, p. 8.
CHAPTER II
ON CONSUMMATED SINS OF IMPURITY
THESE are commonly reckoned as six in number: fornication,
adultery, incest, criminal assault, rape, and sacrilege. All
are grave sins against chastity, and the last five contain grave
malice against other virtues as well. Something must be said
about each one.
1. Fornication is the act of carnal intercourse between
persons of different sex who are not married but who are free
to marry.
Holy Scripture teaches us that fornication is a grave sin,
for " fornicators shall not possess the kingdom of God." 1
" No fornicator hath inheritance in the kingdom of Christ
and of God." 2 It is a grave sin not merely because it is for-
bidden by positive law, but because it is intrinsically wrong
and contrary to the law of nature. Innocent XI condemned
the following proposition: " It seems so clear that fornication
in itself is not wrong, and is only evil because it is forbidden,
that the contrary is altogether against reason." 3 This truth
is sufficiently clear to unaided reason, for the human offspring
requires for long years the constant care not only of the mother,
but of the father as well, and so nature requires that the father
should be certain, otherwise so great a burden could not be
laid upon him. But the fact of paternity would be very un-
certain if fornication were allowed, and so we must conclude
that it is wrong in the nature of things. As St Thomas
observes, 4 the fact that in particular cases the paternity of a
child born out of wedlock is sufficiently clear, and the child's
education can be provided for, does not militate against the
force of the general argument, for in striving to lay down
general rules of conduct we must have regard to what would
happen ordinarily if such an action were lawful, not to what
takes place in special circumstances.
2. Adultery is the act of carnal intercourse between persons
of different sex of whom one at least is married to someone
1 i Cor. vi 9; cf. Gal. v 19. 2 Eph. v 5.
3 Prop. 48, condemned by Innocent XI, March a, 1679.
4 Summa, 2-2, q. 154, a. 2.
212
ON CONSUMMATED SINS OF IMPURITY 313
else. Besides being a grave sin against chastity, adultery is
also a serious violation of justice, which prescribes fidelity to
the marriage vows as long as they exist. Even if the other
party whose marriage rights were violated by adultery should
have given his consent to the sin, it still is against justice, for,
like the right to life, marriage rights are inalienable, and cannot
be renounced by those who own them. If both parties who
sin together are married to someone else, there will be a double
sin against justice committed by both of them, and the circum-
stance should be mentioned in order to secure the integrity
of confession. This is clear, and it is confirmed by the con-
demnation of Proposition 50 by Innocent XI.
3. Incest is carnal intercourse with relatives by blood or
by marriage. Besides its general malice against chastity, incest
is against the special virtue of piety, which prescribes due
reverence toward, and abstention from carnal sins with, those
who are nearly related. With regard to parents and children
at least, this law of reverence belongs to the law of nature ; in
other degrees of kindred up to the third, and of affinity up
to the second, reckoned according to the rules of canon law,
it is of positive ecclesiastical law; whether it is also of natural
law in the nearer degrees is disputed. All carnal intercourse
then, between relatives by blood up to the third degree, and
between relatives by marriage up to the second degree, is
incest either by natural or by ecclesiastical law. Community
of blood and the close ties which exist between parent and
child give a special and distinct malice to sins of impurity
committed between them; in other degrees of kindred and
affinity there is not the same community of blood nor equally
close ties, and so the opinion of many approved theologians is
probable that although incest in the first degree of the direct
line of blood relationship is distinct in malice from the others,
these latter are all of one moral species as far as the integrity
of confession is concerned.
Carnal sins committed between those who are united by the
ties of spiritual or legal relationship are also distinct species
of incest.
4. Criminal assault is the using of violence against a woman
to compel her to commit sins of impurity. It contains a grave
and special sin against justice as well as the malice of impurity,
and it is severely punished by criminal law. It is probable
that there is no specific difference in the sin whether the
woman be a virgin or not.
5. Rape is the violent abduction of a person from a place
214 PRECEPTS OF THE DECALOGUE
of safety for the purpose of satisfying lust. The violence may
be offered to the person abducted, or to the parents, or to
those who have charge of her, and it adds a special malice of
its own to the sin besides the malice against chastity.
6. By sacrilege is here understood the violation by carnal
sin of a person, place, or object, consecrated to God. The
doctrine concerning it will be sufficiently clear from what was
said above under the First Commandment.
CHAPTER III
DE PECCATIS CONSUMMATIS CONTRA NATURAM
HAEC tria numerantur: pollutio seu mollities, sodomia, et
bestialitas, de quibus in sequentibus articulis est agendum.
ARTICULUS I
De Pollutione
1 . Pollutio est voluntaria seminis 1 humani extra concubitum
effusio, unde vocatur etiam peccatum solitarium.
Dicitur voluntaria sive in se sive in causa, ut distinguatur
ab involuntaria quae ex variis causis oriri potest et praesertim
naturaliter ad superfluitatem exonerandam in somno.
Dicitur seminis effusio ut distinguatur a distillatione qua
humor minus densus alterius omnino speciei ex urethra profluit
apud puberes et impuberes sive cum excitatione venerea sive
sine ilia.
2. Pollutio directe voluntaria est intrinsece mala et peccatum
mortale. Constat ex Sacra Scriptura 1 ac ex constanti Ecclesiae
doctrina. Innocentius XI hanc propositionem condemnavit:
" Mollities jure naturae prohibita non est. Unde si Deus
earn non interdixisset, saepe esset bona et aliquando obligatoria
sub mortali." Idem probatur ex pessimis effectibus qui ex
hoc vitio sequuntur turn individuo, ejus vires mentis et corporis
debilitando, turn societati quatenus illi qui hoc vitio implicantur
contenti voluptate solitaria matrirnonii gravia onera fugerent
cum ruina generis humani. In omni vero casu illicita est ita
ut nulla exceptio detur, quia propter maximam proclivitatem
hominum ad hujusmodi peccatum si unquam permitteretur
facile occasiones sibi indulgendi fingerent ad propriam ruinam.
Unde necesse est ut nunquam ne ad vitam quidem salvandam
sit licita.
Plures antiqui Doctores probabiliter juxta St Alphonsum 2
tradiderunt licere semen corruptum sine sensu libidinis expel-
lere. Moderni autem negant semen unquam corrumpi, unde
fundamentum istius sententiae deesse videtur. Smegma vero
1 i Cor. vi 10. z Theol. Mor., 3, n. 478.
315
216 PRECEPTS OF THE DECALOGUE
congestum sub praeputio removere licet et expedit ad pruritum
minuendum.
3. Pollutio indirecte voluntaria est peccatum grave vel leve
vel nullum juxta circumstantias. Si provenit ex causa graviter
mala in genere luxuriae est peccatum mortale, quia volendo
talem causam vult homo implicite etiam pollutionem. Si
provenit ex causa leviter mala in genere luxuriae, ut ex curiosa
lectione libri minus honesti, ipsa pollutio probabilius est
tantum veniale, " quia cum pollutio non sit volita in se, sed
tantum in causa, eo gradu mala erit, quo mala est ipsa causa." 1
Si praevidetur secutura per accidens ex honesta actione ut ex
equitatione, ex modo decumbendi rationabili causa assumpto,
nullum erit peccatum. Si vero per accidens sequitur ex
actione mala in alia specie quam luxuriae, ut ex ebrietate, ex
violatione jejunii, videtur esse veniale, cum aliqua admittatur
culpa etiam contra castitatem quando pollutio praevidetur
secutura ex actione ad quam ponendam nullum detur jus.
Aliqui excusant ab omni etiam veniali culpa pollutionem quae
per accidens sequitur ex actione venialiter tantum mala in alia
specie quam luxuriae. 2 Ut patet in hac quaestione prae-
scindimus a periculo consentiendi in delectationem ex pollu-
tione ortam, quod non supposuimus.
Pollutio in somno quae accidit ex praevio peccato mortali
in genere luxuriae, est ipsa peccatum mortale; si sequitur
ex peccato veniali in genere luxuriae vel ex peccato mortali
ebrietatis, est ipsa veniale ; aliter est nullum.
Siquis pollutionem dum patitur evigilatus fuerit, non datur
obligatio positive earn reprimendi, dummodo nullus consensus
detur : mens debet ad Deum vel ad alia converti ne consentiat
in malum.
Dummodo adsit justa et proportionata causa exercendi
actiones, ut a medicis qui mulieribus medentur, ex quibus
praevidetur pollutio secutura quae non intenditur nee cui
consensus datur, haec nullum erit peccatum, ut clarum est ex
principio duplicis effectus.
4. Quamvis mulieres semen non administrent sed ovum
semine foecundandum in opere conjugali, similis tamen
voluptatis completae solitarie sunt capaces sicut sexus virilis.
Unde sicut apud viros specie distinguuntur peccatum tactus
impudici incompletum et pollutio, ita apud feminas peccatum
solitarium consummatum a peccato nonconsummato specie
distinguitur. Ita cum communi sententia videtur tenendum.
Non semper tamen apud feminas quae pollutionem patiuntur
1 St Alphonsus, Theol. Mor., 3, n. 484. 2 ibid.
PECCATIS CONSUMMATIS CONTRA NATURAM 217
adest effusio extra vas, sed intus excretio manet. A pollutione
vero, lit patet, sedulo sunt distinguenda menstrua, quae
post pubertatem adeptam usque ad menopausim fere omnes
feminae sine aestu libidinis singulis mensibus experiuntur.
5. Impuberes qui semen prolificum non habent voluptatis
perfectae quae peccatum consummatum comitatur sunt
incapaces, unde saltern probabiliter peccatum pollutionis
physice committere nequeunt. Voluntarie sibi complacendo
motibus impudicis mortaliter quidem peccant impuberes, sed
probabiliter propter dictam rationem est peccatum tantum
tactus impudici.
6. Vidimus pollutionem, quae ex causa leviter tantum mala
in genere luxuriae sequitur et quae in se non est voluntaria,
esse veniale tantum peccatum. Sed quaestio est apud Doctores
controversa utrum si propter specialem alicujus dispositionem
vel fragilitatem pollutio fere semper ex tali causa sequitur iste
sub gravi ab actione ponenda teneatur eo quod causa tune
graviter in effectum influere censeatur, an tantum sub levi.
Si adsit proximum periculum consensus dandi, omnes ad-
mittunt adesse obligationem ab actione ponenda abstinendi
gravem, aliter vero probabilis videtur sententia plurium
obligationem esse solummodo levem. Nam adhuc vera manet
ratio a S Alphonso assignata doctrinae supra traditae, " quia
cum pollutio non sit volita in se, sed tantum in causa, eo gradu
mala erit, quo mala est ipsa causa." Ratio vero cur causa in
hoc casu gravius influere in effectum videtur, est subjectiva
agentis dispositio quae non est volita, nee proinde imputabili-
tatem effectus afficit.
ARTICULUS II
De Sodomia
Sodomia est actus venereus completus in vase indebito, et
est peccatum gravissimum contra natura.m. Concubitus cum
eodem sexu et copula per anum est sodomia perfecta, concu-:
bitus diversorum sexuum et copula per anum est sodomia
imperfecta quae specie a priori differt. Si sodomia reservatur,
nisi aliud expresse a reservante declaratur, intelligitur sodomia
perfecta.
Plures tamen theologi docent sodomiam consistere in
concubitu ad indebitum sexum, ita ut sit indifferens qua
parte coeatur, si fiat applicatio membri virilis ad sexum in-
debitum cum pollutione. Quae sententia sane est probabilis,
imo ut aliqui dicunt communis, unde sufficit si confessarius
2i 8 PRECEPTS OF THE DECALOGUE
intelligat fuisse concubitum cum affectu ad sexum indebitum
et cum pollutione, nee est necessarium inquirere de modo
coeundi. 1
Sodomia igitur consistit in concubitu cum sexu indebito
cum pollutione, unde siquis se polluit simplicitur tangendo
alium, malitiae ejus inconscium sine affectu ad personam,
et sine concubitu, habetur pollutio non sodomia. Si alter
etiam peccat, circumstantia complicitatis in confessione erit
manifestanda. Probabile est specie non distingui peccatum
agentis et patientis, si ex utraque parte adfuerit pollutio.
ARTICULUS III
De Bestialitate
Bestialitas est concubitus cum bestia.
Dummodo adsit pollutio indifferens est sive bestia sit
masculina sive feminina, qua specie sit, vel qua parte coeatur,
cum malitia hujus peccati consistat in accessu ad diversam
speciem, quacum generatio haberi non possit. Gravius est
peccatum quam etiam sodomia, cum in hoc peccato non
servetur eadem species. Constat vero hodie generationem non
sequi ex commercio hominis cum bestia.
Sodomia et bestialitas gravissime lege ecclesiastica et
etiam municipali puniuntur (Can. 2357, 2359).
1 St. Alphonsus, 3, n. 466.
CHAPTER IV
ON NON-CONSUMMATED ACTS OF IMPURITY
i. As we saw above, mortal sin is always committed when-
ever venereal pleasure is directly sought or deliberate consent
is given to it, even though the venereal excitement be little
and stop short of consummated sin. In other words, there
is no parvity of matter, as theologians say, in sins of impurity
when the venereal pleasure is voluntary in itself. It follows
from this that non-consummated .acts of impurity such as
immodest touches, looks, talk, reading, will be mortally sinful
whenever they are indulged in with a view to exciting venereal
pleasure.
2. Even though the excitement of venereal pleasure be not
directly intended, yet immodest touches will be more or less
sinful in proportion as they are more likely to excite venereal
pleasure, and there is no just cause for allowing them. If
there is a just and proportionate cause for permitting immodest
touches and any venereal pleasure that may ensue is not in-
tended or consented to, then there is no sin in them. When
there is no good reason for allowing immodest touches, they
will be mortally sinful if, as a general rule in normally con-
stituted persons, they tend to cause great venereal excitement ;
otherwise they will be venially sinful.
Hinc: (a) Tactus in partes inhonestas alterius personae
diversi sexus sunt mortalia, imo alterius personae ejusdem
sexus, nisi leviter ex joco vel petulantia fiant.
(b) Tangere genitalia brutorum, vel partes minus honestas
alterius personae per se veniale non excedit.
In the same way immodest looks may be gravely or venially
sinful, or perfectly lawful, according to circumstances. When
there is just cause for them and no harm is intended or con-
sented to, they are lawful. If there is no good reason for them,
and of their nature they tend to cause great venereal excitement,
they are mortally sinful ; otherwise they are only venially sinful.
Hinc : (a) Aspicere ex curiositate pudenda personae alterius
sexus, vel concubitum humanum, est mortale peccatum, nisi
brevissime fiat, vel a longa distantia, vel si aspiciens sit senex,
frigidus, talibus assuetus, quia tales parum moventur. Facilius
219
220 PRECEPTS OF THE DECALOGUE
a mortali excusatur qui ex curiositate aspicit picturas obscoenas,
quae non ita commovere solent.
(&) Leve peccatum per se non excedit aspicere ex curiositate
animalia coeuntia, partes minus honestas mulieris, partes
obscoenas ejusdem sexus.
(c) Actus praedicti culpa vacant si ex proportionata utilitate
vel necessitate exerceantur.
Similarly immodest conversation will be mortally sinful if it
is about very obscene subjects between young persons, especi-
ally if they be of different sexes. It will be venially sinful if
the subject be less objectionable, or if a dirty joke is made in
passing. The confessor may, as a rule, presume that grown-up
penitents, especially if they be married, who accuse themselves
of immodest talk, are only guilty of venial sin ; and so he may
spare himself and them any questioning on the matter.
The reading of very obscene books without any good reason
can hardly be excused from grave sin, unless by experience
the reader knows that they have little or no effect upon him,
and this should not be lightly presumed. Reading novels in
which the passion of love is depicted in warm colours is very
dangerous, especially for the young, and unless there is some
good excuse for it can hardly be without some sin. This will
all the more be true of novels which are suggestive of evil,
and fill the mind with dangerous thoughts.
3. The morality of kissing and embracing is regulated by
the same principles as the above. Kissing in the ordinary
way 4 of greeting or leave-taking between relations and friends,
according to the custom of the country, as theologians say, is
of course harmless and allowed. Even if such marks of pure
affection or civility unintentionally sometimes cause venereal
excitement, no notice should be taken of it. Apart from this,
kissing and embracing, especially between different sexes,
naturally tends to cause venereal excitement, and is more or
less sinful. Mortal sin will be committed as a rule by in-
dulging in passionate and prolonged embraces and kisses;
otherwise the sin will be only venial. Those who .intend
marriage and are already engaged to each other have an excuse
for showing each other the ordinary signs of affection, but
they should use their privilege with due caution and Christian
prudence. As a rule, little harm will be done if they have
a witness of their conduct, or if they only permit themselves
to do what they would do if such a witness were present.
4. Non-consummated sins of impurity are specifically
di stinct from consummated sins, in the same way as attempted
ON NON-CONSUMMATED ACTS OF IMPURITY 221
homicide is specifically distinct from homicide. Impure
touches, however, and lascivious kisses and embraces contract
the malice^ of the circumstances of the object, just as con-
summated sins do. For, just as fornication with one bound
by a vow of chastity or with a relation is not simple fornication,
but contracts the malice of sacrilege or incest according to the
circumstances, so impure touches of the same persons would
also be sacrilegious or incestuous. The reason is because sins
receive their specific malice from the object, and sins of touch
take their malice from the concrete object as it exists with its
special circumstances.
Impure speech and looks, on the contrary, do not seem to
contract the malice of the circumstances of the object, for such
sins are affected by the general character of the object only,
and not by its special circumstances. This, at least, is the
opinion of many theologians. '
It is a disputed point among divines whether impure touches,
looks, talk, or reading, are specifically distinct from each other
apart from any difference in the object. Would it, for example,
be sufficient to say in confession, " I committed a sin by
indulging in venereal pleasure by myself," without mentioning
whether it was procured by touch, or look, or other means ?
Although the common opinion is that such a general form of
self- accusation would not be sufficient, and that the penitent
must say whether the sin was one of touch, or look, etc., yet
the contrary view seems probable, for such imperfect acts are
wrong, not precisely in themselves, but on account of their
tendency to excite venereal pleasure. The reason, then, and
source of their malice is the same, and so they would seem not
to be specifically distinct as sins, though they are physically
distinct acts.
PART VII
THE SEVENTH AND TENTH
COMMANDMENTS
THE Seventh Commandment is, "Thou shalt not steal," 1
and therefore directly and explicitly it forbids theft, but im-
plicitly it commands us to observe justice in our dealings with
others. The Tenth Commandment is, " Thou shalt not covet
thy neighbour's goods," 2 and so it forbids internal sins against
justice. The subject-matter, then, of these commandments
is the virtue of justice, of which we have now to treat.
DIVISION I
On Justice and Right
CHAPTER I
THE NATURE OF JUSTICE AND RIGHT
i. THE word "justice " is used in a variety of senses, but
here it is used in its strict meaning to designate the moral
virtue which inclines its possessor to give to everyone his due
or his right.
The habit of giving to everyone his due from principle
because it is right and proper is obviously a virtue, and it is
a moral, not a theological, virtue, for its immediate motive is
not God, but the natural honesty and uprightness of so acting.
Justice is a moral virtue which resides in and perfects the
will, not the intellect, like prudence ; it inclines the will to wish
and to execute what is right. Justice inclines the just man
to give his due to everyone irrespective of who he may be.
It does not consider the relation in which that other stands
to God, or to one's self, as charity does; nor precisely what
it is becoming in the just man to do, so that his actions may
be worthy of himself, as does temperance, for example; it
only considers what is owing to another, what is his due ; and
1 Exod. xx 15. 2 Exod. xx 17.
222
THE NATURE OF JUSTICE AND RIGHT 223
because it is the right thing that everyone should have his own,
justice inclines to give it to him.
What is due to another in justice and is therefore his strict
right must be distinguished from what a man has a claim to
on some other ground. A poor man who cannot support
himself has a claim on our help, but out of charity, not out
of justice. He is our brother ; he is a child of our common
Father in heaven ; he is destined to be a fellow- citizen with us
' for ever in the kingdom of heaven ; the bond of mutual love
which binds all such in one body, and makes them one big
family, requires that all who can, should, out of their abund-
ance, assist those who are in want. But this does not cause
the abundance of one to belong to a needy neighbour in justice ;
it only prescribes that as much as is required to succour him
in his necessity should be given him out of charity. A sufferer
who is in pain has a claim on my sympathy and pity, not that
it would be unjust to deny him my sympathy, but because
pity and compassion require it of me. But when ten pounds
are due to another in justice, those ten pounds belong to him;
they are his property ; he has a right exclusive of all others to
all the benefit that can be derived from them, because they
are his. Because they are his he can dispose of them as he
pleases ; he can put them in the bank, or spend them, or give
them away; he would wrong no one even if he threw them
into the sea. Anyone who steals them, or to whom he lends
them, must, if he would be just, restore them to the owner,
because justice requires that all should have their own.
2. We may divide the species of justice into individual or
commutative and social justice.
Commutative justice regards the relations between man and
man in their private and individual capacity. It supposes a
perfect distinction of rights between them, and prescribes
that these should 'be duly observed and respected. It exists
between physical and moral persons alike, or between a physical
and a moral person, provided that their rights are perfectly
distinct from each other.
Social justice regulates the mutual relations between the
individual and the society or State to which he belongs. As
a member of society the individual has certain duties toward
it; he must contribute his share to the common burdens; he
must be ready to defend the common weal at the call of
authority; he must obey just and equitable laws. This duty
of rendering to the State what is its due is called legal justice.
On the other hand, the State has its obligations toward its
224 PRECEPTS OF THE DECALOGUE
subjects; it must distribute burdens, honours, and rewards
equitably without showing favour to particular classes and
persons; not indeed with absolute arithmetical equality all
round, but according to respective merits. The virtue which
should regulate the distribution of burdens and rewards among
its subjects by the State is called distributive justice. To such
as have committed crime and injured the common weal the
State metes out condign punishment according as vindictive
justice demands.
There is a difference of opinion among Catholic writers as
to whether legal, distributive, and vindictive justice, which we
have grouped together under the name of social justice, are
really subordinate species of the virtue, or whether commu-
tative justice is the only species that may in strictness be so
called. Whatever view be taken we must allow that in com-
mutative justice alone is there a perfect distinction between
debtor and creditor; it alone observes arithmetical equality in
satisfying its obligations; it alone binds to restitution after
being violated. In social justice, on the contrary, there is no
perfect distinction between the State and its subjects; social
justice does not prescribe the observance of arithmetical
equality, nor does its violation bind to restitution, except
when by the same act commutative justice has also been
infringed.
3. That which in justice is due to me is my right, as it is
called. I have a right to my life, to my good name, to my
property; and anyone who deprives me of these rights is .guilty
of injustice. Rights, then, are the subject-matter of justice,
and in this, its strict sense, a right may be defined as a moral
power of having, doing, or exacting something.
It is said to be a moral power to distinguish it from the
mere physical capacity of brute force, which confers no rights
of itself. It is a moral power which may not without injustice
be interfered with. It is the power of having and possessing
as one's own something which man values and which serves
his convenience and wants; or of doing something, of giving
scope to his bodily or mental activity; or of exacting some
service as due to him from another.
A right is in re or ad rem. A right in re is a right which one
has to something determined and already his own. In order
that one may have a right in re the object must already exist;
it must not be merely possible or future ; it must be determined
and separate ; it must belong to the person by a title of justice
so that it is his. If one of these conditions is wanting but
THE NATURE OF JUSTICE AND RIGHT 225
notwithstanding someone has a claim in justice that something
should become his property, he has a right ad rem to it. Thus
a farmer has a right in re to his harvest after he has gathered
it ; before it has grown he has only a right a d rem. The right
of a servant to his wages is ad rem until they are paid ; after
they are paid his right is in re.
A right in re seems to be practically equivalent to ownership
(dominium). Ownership is absolute or qualified. Absolute
ownership is the unlimited power of disposing of a thing for
one's own benefit. The absolute owner of a horse may use
him, sell him, give him away, or kill him, without violating
justice ; he may do what he likes with his own. If ownership
is limited in some way so that the owner has not a right to all
the uses to which the object may be put, the ownership is
qualified. Qualified ownership of the thing while its use
belongs to someone else is called direct; qualified ownership
of the use of what belongs to someone else is called indirect
ownership.
According to English law, a subject is incapable of absolute
ownership of realty ; he is only capable of a qualified ownership
therein, although to all intents and purposes an estate in fee
simple is equivalent to absolute ownership. A qualified
property of many {different kinds may be [had in realty, and
both an absolute and qualified property of many different
sorts may be had in movables. The various kinds of property,
especially in immovables, are recognized and determined
by law, which enforces the rights and obligations annexed
thereto. In different systems of law there will be different
kinds of property recognized. It will be sufficient for our
purpose merely to mention ususfructus, usus, habitatio, servitus,
of the Roman and canon law.
In English law the quantity of interest which a man has
in lands and tenements is called an estate, of which there is
a great variety : equitable and legal estates ; estates of inheritance
and not of inheritance; estates of freehold interest and less
than freehold, such as estates for years, estates at will, and
estates at sufferance.
15
CHAPTER II
OBJECTS OF OWNERSHIP
i. WE will here consider the various objects which can be
owned by men, and to the exclusive use of which they can
lay claim as being due to them in justice. We saw above that
God has reserved to himself the dominion of human life ; he
is the God of life and of death, so that an injury is done to
God by suicide or by unjustifiable homicide. Not even the
State can have the absolute ownership of human life; it can
never directly kill the innocent, although, as far as the common
good demands it, the State may take the life of malefactors,
and may require that each and all should be ready to defend
the common weal even at the risk of life itself. No one, then,
but God has the absolute ownership of human life or of man's
limbs and members.
Each one, however, has a qualified ownership in the faculties
which God has given him. His activities of mind and body
have been granted to man that by using them in a proper
way he may do good and avoid evil, and thus secure the end
of human existence. A man, therefore, is under the obligation
imposed by God of making use of his mental and bodily
faculties, and he has a consequent right to do so, as far as
he does not thereby injure others.
When man by his labour has produced something which
serves his wants and convenience, he has a right to the fruit
of his toil ; this is his property, and he cannot be deprived of it
without injustice. This applies to what he has produced with
his own toil, out of his own material, with his own resources.
A man's reputation, then, inasmuch as it is the fruit of his
merit and industry, is his property, and he cannot be un-
warrantably deprived of it without injustice. He may, how-
ever, surrender it himself for good reason ; he may write his
confessions, like St Augustine, for the purpose of self-humilia-
tion and for the instruction and edification of others; other-
wise he must have a care of his own good name, without which
he can do little good, and may do great harm to others.
2. Similarly, by the law of nature a book, design, or com-
position belongs to the author, and a new invention to the
226
OBJECTS OF OWNERSHIP 227
inventor. These things and others of the same kind are the
fruit of the author's or inventor's thought and labour, and
anyone who stole them and published them without their
owner's consent would commit a sin against justice.
Among modern civilized nations these rights are protected
by municipal laws and international agreements, and, inasmuch
as these determine the vague and uncertain prescriptions of
the natural law, they bind in conscience.
The exclusive right of printing or otherwise multiplying
copies of books, etc., is called in English' law copyright. It
extends not only to books, but to every volume, part, or
division of a volume, pamphlet, sheet of letterpress, sheet
of music, map, chart, or plan separately printed; to engravings,
prints, sculpture, models, busts, paintings, drawings, photo-
graphs, designs, dramatic and musical representations.
Copyright is protected throughout, the British dominions and
the principal countries of Europe, which form the Copyright
Union. On certain conditions copyright is now protected
in the United States of America, and foreign authors may
acquire copyright within the States by complying with those
conditions.
English law grants copyright for the author's natural life
and for fifty years longer.
In the United States the original terms run for twenty- eight
years; it may, however, be renewed for a further term of
fourteen years, making forty-two years in all.
In the same way patent right, or the right of the inventor
to reap the benefit of a new contrivance, is protected in England
on certain conditions for fourteen years, which protection
may be extended for a further period of seven or fourteen
years if the inventor has not yet reaped the full benefit of his
invention, and such patent is for the public benefit. The
period to which patent right extends in the United States is
seventeen years.
There is a controversy among theologians as to whether the
natural law of itself forbids the reissue by another without
the author's consent of a book which has once been published.
Some deny this on the ground that by being published, apart
from the prescriptions of positive law, a book 'becomes public
property, and anyone who buys a copy may make what use
of it he pleases. He is merely disposing of what is his own.
The contrary opinion, however, seems better grounded, for
the author in publishing a book makes over indeed to the
buyers of it certain advantages, but there is nothing to prevent
228 PRECEPTS OF THE DECALOGUE
him reserving the right of issuing it again to himself. The
buyer of a copy may make the contents of the book his own
and work them up again in any form of his own that he chooses ;
he buys the material part of the book, paper, binding, etc.,
and may make what use of them he pleases ; but he does not
purchase the right to issue the book again, and he violates
justice if he does so against the author's wish. The same
holds with regard to patent right.
This controversy is of little practical importance, for suffi-
cient protection is provided in most civilized countries by
positive law.
3. We saw above that no one except God can have an
absolute property in man's life or members. No man, then,
can become the chattel of another so that he may lawfully
be disposed of like a brute beast. Christian teaching has
banished such an idea from Christendom at least. On the
other hand, there is no difficulty in admitting that one man
may make over his services to another for as long as he pleases.
Theoretically, therefore, there seems no reason for saying that
slavery is against the law of nature. We here understand by
the term the state of perpetual subjection of one to another
so that he owes that other his life service in return for board,
lodging, and clothes. Practically, great abuses usually accom-
panied slavery, and we must allow that it is out of harmony
with the spirit of the Gospel. Chiefly through the wise and
gradual action of the Church, it has ceased to exist as an
institution among civilized nations. However, we must not
forget that penal servitude is still the just and recognized
punishment for grave crime. Merely looking at the question
from the point of view of the strict law of nature, we must
acknowledge that a state of slavery arising from contract, or
birth, or in punishment for crime, or as the result of a just
war, is not in itself immoral.
4. Animals and the earth, together with all that they pro-
duce, may become man's absolute property. God has imposed
on him the obligation of maintaining himself and those who
are dependent upon him, and he has a consequent right to
make his own whatever is necessary and useful for that pur-
pose, if it has not been appropriated by someone else. He
has a right to provide not only for his immediate wants, but
for the future also ; not only for himself, but for his offspring.
In other words, nature herself gives man the right of private
property. This right is not given by the State; it is anterior
to the State, and its preservation and defence is one of the
OBJECTS OF OWNERSHIP 229
chief reasons for the existence of the State. It may indeed be
regulated by the State, as far as is necessary for the common
good, but it is beyond the power of the State to do away with
it. 1 No Catholic is at liberty to deny the lawfulness of private
property and its necessity in the general conditions of the
modern world.
Socialists, indeed, advocate the nationalization of the land
and of all the means of production and exchange as a sovereign
cure for the economic evils of the world. The plan militates
against the right of private property; it is unworkable, and
even if it could be introduced it would be no cure for exist-
ing evils, and would introduce other new ones. The fuller
treatment of this, a practical question in our days, scarcely
belongs to moral theology; it is not in the confessional that
such questions are treated. The student should consult
books on ethics, or special works written on socialism or
collectivism.
1 Leo XIII, on the Condition of Labour, May 15, 1891.
CHAPTER III
WHO MAY OWN PROPERTY
SECTION I
General Principles
i. NONE but an intellectual being endowed with intellect
and will can own property. For such alone, or persons as
distinct from things, are the subjects of rights ; persons alone
can freely dispose of objects which are necessary or useful for
the attainment of man's destiny. Persons alone can suffer
a formal injury by the wilful violation of their rights against
their will, and so they alone are capable of having rights and
holding property.
2. God, who is the Creator of all things, is also their uni-
versal Lord and Master. He can do what he pleases with
his own ; however he may treat his creatures, they cannot com-
plain of God's injustice toward them. He is bound only by
the laws of his own infinite Goodness and Wisdom.
Other pure spirits whom God has created might con-
ceivably have rights of ownership, but as they have no use
for material things with which we are specially concerned, we
need not further consider them in this connection.
3. All men, even imbeciles, who will never have the use of
reason, and infants still unborn, are subjects of rights and
capable of holding property. For they all require many things
for their support,, preservation, and defence, for the perfect
development of all their faculties, mental and bodily, and for
the orderly and secure attainment of their end. As, then, they
are under the obligation of striving for the attainment of their
end, and they have the right to do so, they have also the right
to the necessary means. This reasoning is not invalidated by
the incapacity of infants and imbeciles to use their faculties
and administer their property. Their rational nature gives
them their rights ; their capacity to use them is not a necessary
condition of their existence. A man who is asleep retains his
rights, though he cannot then exercise them. Besides, what-
ever defect there might be in the title of infants and imbeciles
to the rights of men is supplied by the provisions of positive
330
WHO MAY OWN PROPERTY
law, which confers rights of property independently of the
knowledge or acceptance of the owner.
4. Inasmuch as man is a social animal, and develops his
faculties in the society of his fellows, whose help he constantly
needs, nature herself has given him the right to form private
societies, companies, or corporations, for the furtherance of
common ends, independently of that larger public society
which we call the State, and to which all belong. As Leo XIII
teaches: "Private societies, then, although they exist within
the State, and are severally part of the State, cannot neverthe-
less be absolutely and as such prohibited by the State. For
to enter into a society of this kind is the natural right of man ;
and the State is bound to protect natural rights, not to destroy
them; and if it forbid its citizens to form associations, it
contradicts the very principle of its own existence; for both
they and it exist in virtue of the like principle namely, the
natural tendency of man to dwell in society." 1
The State, of course, has the right of control over such
societies as are founded for civil purposes, and they are subject
to the just laws which the State may make in their regard.
English law acknowledges both corporations aggregate, con-
sisting of more than one person united for the purpose of
pursuing a common end, and corporations sole, consisting
of but one person like the sovereign or the rector of a church.
A corporation is a moral entity, a fictitious person, with rights
of its own, distinct from the rights of the physical persons
who compose it. As far as property is necessary for the
attainment of its end, a corporation has the right of ownership,
though this right is subject to the control and regulation of
the supreme authority. Leo XIII in his encyclical on labour
warmly approves of workmen forming their own unions and
societies for the defence of their rights and the furtherance of
their welfare.
SECTION II
Property Rights of Minors
i. Apart from positive law, a minor is capable of owning
property in his own right just as if he were of full age. Con-
siderable rights over a child's property were granted to the
father by Roman law. The minor had, indeed, complete
ownership of what he earned by military service or by any
public office, but the usufruct of what came to the son in other
1 Encyclical on the Condition of Labour, May 15, 1891.
232 PRECEPTSKOF THE DECALOGUE
ways belonged to the father. Similar rights are commonly
granted to the father by those modern systems of law which
are derived from the Roman. According to English law,
however, the father as such has no rights over any property
which belongs to his child. During the child's minority, if
no trustee or guardian of his property has been appointed,
the father will usually be appointed guardian, and in that
capacity he is bound to administer the property for the benefit
of his child, nor may he use it for his own profit.
On the other hand, English law gives no right to children
to share in their father's property except in case of intestacy,
differing in this also from the Roman and derived systems.
The parent may by our law leave his property to whomsoever
he will, unless, of course, it is entailed. If a father die intestate,
one-third of his real estate, if he was possessed of any, goes
to his wife as dower, unless it is barred as it is in the majority
of cases ; the rest goes to the eldest son or his issue, or if there
were no son the rest is divided equally among the daughters.
Of the personal estate of a father who died intestate one-third
goes to the widow, and the other two-thirds to the children
in equal shares.
2. A child who has the means is under a moral obligation
of supporting his parent when he is incapable of supporting
himself, and this obligation is enforced by English law.
Moreover, if a minor is earning wages the parent is not
bound to support him free of cost, and until he is sixteen it
would seem that the parent is justified in taking his earnings.
Even after that age it may well be that an elder son or daughter
who is in receipt of wages is bound to help to support younger
brothers and sisters if the family is numerous. Apart from
these obligations a minor acquires a full right to what he
earns, and may enter into a contract with his parents for the
payment of the cost of his board and lodging, reserving what is
over of his wages for himself. If a minor works in his father's
house no contract for wages will be presumed ; he is supposed to
forego them, or his keep is supposed to be an equivalent, unless
an express contract for wages is entered into between them.
3. Minority ceases on the completion of the twenty-first
year of the minor's age, or by emancipation. A minor is
emancipated from his parents' control by marriage, by entering
into religion, or when an adult child leaves the paternal house-
hold and enters the army or ordinary service as a domestic
servant or labourer. 1
1 Eversley, Law of the Domestic Relations, p. 599.
WHO MAY OWN PROPERTY 233
SECTION III
Property Rights of Married Women
1. The fact that a woman marries does not of itself take
away or lessen her natural capacity to possess property. Her
husband is indeed the head of the family, and is presumed to
be better able to administer family affairs than his wife. More-
over, the law of England used to give the husband very exten-
sive rights over his wife's property. For in general any
freehold estate of which the wife was seized at the time of the
marriage, or of which she became seized afterwards, became
vested in her husband and herself during the coverture, and
the husband was entitled to the profits, and had the sole control
and management. By marriage a husband became possessed
of his wife's leaseholds in her right. He was not only entitled
to the profits and management of them during the joint lives,
but he could dispose of them as he pleased by any act during
the coverture. The personal chattels of the wife became in
general the absolute property of the husband. 1
By degrees inroads were made on the rigour of the common
law, and means were found to secure separate property to
a married woman. By the Married Women's Property Acts
of 1870 and 1882 great changes were introduced, so that now
a woman married after the first day of January, 1883, possesses
as her separate estate all her property," whether acquired before
or after the marriage. All women who were married before
the above date similarly possess as their separate estate all
property which comes to them after that date. Practically,
therefore, during her life and that of her husband a married
woman has rights of property as if she were single.
Furthermore, she has a right to support for herself and her
children, even those of a previous marriage, at her husband's
expense, according to her condition in life, and she may effect
an insurance on her own or on her husband's life for her
separate use. '
2. Besides the foregoing advantages a married woman who
survives her husband is entitled to dower, unless some act has
been done to curtail her right that is, she is entitled to hold
to herself, for the term of her natural life, the third part of all
the lands and tenements of which he died seized in fee simple
or fee tail, and of which any issue that she might have had
could have been heir. 2
1 Stephen's Commentaries, z, p. 277. 2 ibid., p. 283.
234 PRECEPTS OF THE DECALOGUE
If her husband dies intestate and without issue, the widow
is entitled to the whole of her husband's estate, both real and
personal, when such estate does not exceed five hundred
pounds in value; if over that amount she takes five hundred
pounds out of the real and personal estate ratably before any
division is made, and after that the share in the remainder
to which she was entitled before the passing of the Intestates'
Estate Act, 1890.
Before the passing of this Act a widow of a husband who
died intestate took one-half of the personalty if there were
no children of the marriage, otherwise she took one-third.
Moreover, one- third of the intestate's real property went to the
wife for life. These rights, therefore, she still possesses.
3. A married woman can now make a will and leave her
separate property according to law to whom she pleases. In
conscience she must of course take account of the needs of
her surviving relatives and of other legitimate claims on her
remembrance. If she dies intestate, all her personalty goes
to her husband ; her realty also goes to him for life, afterwards
to trie only child, or to the eldest son or his issue if he be dead,
or to the daughters equally.
SECTION IV
The Right of the Church to Possess Property
i . We have already seen that not only physical persons but
also corporations or societies can own property. The Church
is a perfect, independent, and visible society founded by
Christ our Lord, and endowed by him with all the rights
and privileges which are necessary to enable her to attain her
end. This end is the sanctification and salvation of souls
by the preaching, propagation, and exercise of the Christian
religion. It is obvious that for the support of the Church's
ministers and missionaries, for the building and upkeep of
churches, for the decent and proper exercise of religious
worship, and for numerous other purposes, ample revenues
and lands are required, and, inasmuch as the Church has the
obligation and the right to work for the end for which she
has been founded by God, so she has the right to the necessary
means. This reasoning is confirmed by the condemnation
by the Popes of several false propositions bearing on the
Church's right of ownership 1 (Can. 1495).
Props. 10, 32, 33, 36 of Wyclif; and Prop. 26 of the Syllabus.
WHO MAY OWN PROPERTY 235
2. The general truth that the Church has a right to own
movable and immovable property is certain, and does not
depend for its validity on the question as to .who is the definite
owner of Church property. This was a disputed question,
some theologians maintaining that God is the immediate as
well as the ultimate owner, inasmuch as Church property is
said to be given to God; others taught that the universal
Church or the Pope is the owner ; others, again, that the cor-
porations constituted by individual churches, dioceses, religious
congregations, and orders are the real owners of the ecclesiastical
property belonging to those institutions. This last opinion
is commonly accepted nowadays, and it seems more in keeping
with the intention of the donors of such property, which is
usually the benefit of a particular religious institution for the
honour of God, and in this sense they make their offering to
God (Can. 1499, sec. 2).
The administration and management of Church property
belong to those ecclesiastics who have been lawfully placed
over the churches, dioceses, institutes, etc., to which the
property belongs ; and the Pope as the supreme head of the
Church on earth has the supreme administration, or the altum
dommium, as it is called. 1
3. The profits derived from ecclesiastical property should,
according to the Church's law and natural equity, be devoted
to those purposes for which the donors gave the property.
If this cannot be done because the object for which the property
was given no longer exists or for some other legitimate cause,
it is for the Pope to make the needful dispositions so that the
intention of the donors may be carried out as far as possible
(Can. 1514).
No immovable ecclesiastical property, or even movable
when it is of considerable value, may be alienated without the
leave of the Holy See, and the penalty of excommunication
is incurred by all who attempt to do so or to receive the same
without the requisite permission. The Pope for good cause
may of course alienate Church property, as he has not in-
frequently done, especially in times of upheaval, as after the
Reformation in England and after the French Revolution
(Can. 2347).
1 Can. 1519-1521, etc.
236 PRECEPTS OF THE DECALOGUE
SECTION V
Property Rights of Clerics
i . We do not propose to treat here of the capacity of religious
to own property; that question will be best considered when
we treat of the state of religious. Here we only inquire into
the property rights of the secular clergy.
The property of the clergy is divided by theologians into
four kinds. What they possess as private persons, whether
it has been given or bequeathed to them or they have inherited
it, is called their patrimony. Quasi-patrimony is what they
have obtained by the exercise of their ministry in stole fees,
stipends, and casual offerings. Ecclesiastical goods are derived
from the revenue of benefices. Savings are what a cleric has
acquired by living sparingly and which he might have spent
by living according to the ordinary standard.
Of these different kinds of property, patrimony and quasi-
patrimony belong to the cleric; they are his private property,
of which he has the ownership just like anybody else, for he
is not deprived of the right to possess property by becoming
a cleric. What he saves also from what he might have spent
lawfully on his support belongs to him, for the labourer is
worthy of his hire ; he has a strict right to a decent living from
the revenues of the Church, and what he saves from the sum
required for this belongs to him as his own.
There is a difficulty concerning the profits derived from his
benefice if the cleric has one. He may, of course, use the
income derived from this source for his maintenance accord-
ing to his rank; but supposing that a balance remains over,
what must he do with that ? Ecclesiastical law prescribes
that he must employ it for pious purposes, and must not
squander it or enrich his relations with it. He is bound under
pain of sin to give it to the support of religion, or to the poor,
or for educational or other pious causes. If he does not do
this, he certainly sins against obedience; but does he also sin
against justice, and is he therefore bound to make restitution ?
This is a disputed question among divines. The more
probable opinion is that he does not sin against justice and so
is not bound to restitution; for the income derived from his
benefice is his own property, and he may do what he pleases
with his own, unless there be some law which restricts his
free disposal of his property. In this case there is such a law,
which must be observed, but which for all that does not make
WHO MAY OWN PROPERTY 237
an act which it prohibits unjust; it only makes it unlawful
(Can. 1473).
2. In English-speaking countries there are few well-endowed
benefices, so that in general the clergy have to be supported
by the offerings of the faithful. As Leo XIII says in his
Constitution Romanos Pontiftces, May 8, 1881, the offerings
of the faithful were not regarded as ecclesiastical property
where religion and the clergy were sufficiently provided for
from other sources. In Britain, however, the offerings of the
faithful are almost the only means available for the maintenance
of divine worship, the building and repair of churches and
schools, the support of charitable institutions and of the clergy.
Hence it becomes a matter of importance to be able to decide
what offerings belong to the clergy as their own property,
and what constitute ecclesiastical property and belong to the
Church. Of the latter property the clergy are only the ad-
ministrators, and they are bound to render an account of their
administration to their superiors and to God. Rules for
settling what offerings are private and what ecclesiastical
property were drawn up by the Second Provincial Synod of
Westminster, approved in the year 1856; and Pope Leo XIII
sanctioned those rules and ordered them to be observed
wherever his Constitution Romanos Pontifices should be in
force. I here give Father Guy's version of the rules :
" (i) Offerings of the faithful for the propagation and orna-
ment of religion, for the support of the clergy, the relief of
the poor, and other pious uses, are considered as made to God
and the Church, and the administrators or guardians of them,
whether ecclesiastics or laymen, are to be deemed merely
dispensers of them, under an obligation of rendering an
account to God of their stewardship. As here now it is
required among the dispensers that a man be found faithful
in those things which concern the rightful administration of
Church property, it seems proper that in this synod we should
treat this matter more fully, inasmuch as having been occupied
with matters more important in the First Provincial Council,
we deferred the consideration of this subject to a more con-
venient opportunity.
" (2) Every effort must be made to determine, if there be
any doubt, the intention and purpose of the donor or testator
of each fund, and that the proceeds of it may be rigidly applied
to the use prescribed by him.
" (3) If this intention cannot be ascer ained from any
trustworthy document, rules or canons by which a safe
238 PRECEPTS OF THE DECALOGUE
judgement may be formed in such cases should be ob-
served.
" (4) Whenever a church or school or any other building
intended for religious uses is erected or provided, either
wholly or in part, from money contributed by the faithful,
or granted by any society administering the alms of pious
Catholics, every edifice of this kind is to be considered as
belonging for ever to the place where it stands.
" (5) The same judgement must be passed on buildings
erected by any benefactor, unless it is clearly proved that he
made a declaration that in erecting such an edifice he did not
intend it for the advantage of the faithful of that place, but
that he wished to confer a benefit on some particular order.
The rules laid down in this and the preceding number as to
rights in foundations are in the case of Regulars to be applied
to new foundations only.
" (6) But the Bishop shall not be allowed on this account
to take away a mission lawfully entrusted to any religious order.
These rules regard merely a case in which a religious body
either cannot or will not retain the care of a mission for
example, if a superior remove it to some other place, or for
any other reason it there cease to exist altogether and not
for a time only.
" (7) If, however, any mission be founded altogether or for
the most part by funds belonging to any religious body, which
for good reasons may wish to leave entirely and go elsewhere,
we recommend that a distinct agreement be made between
the Bishop and the superiors of the order as to what has to
be done ; so that on the one hand just rights may not suffer,
and on the other no scandal may arise nor grievous loss of
souls ensue.
" (8) Much less is it lawful for any cleric, or even for the
Bishop himself, to alienate Church property, as is evident
from almost numberless decrees of canon law. If, however,
on account of reasons approved of by the canons, such an
alienation become necessary, the priest can never act in this
matter without the authority of the Bishop, nor the Bishop
without the precautions required by canon law.
" (9) In every mission where money is contributed by the
faithful in the ways hereafter described it is to be accounted
Church property, and not a donation to the priest. For from
this money he must provide not only for his own decent
support, but for the expense of religious worship, for the
maintenance of the fabric, for payment of debts, where there
WHO MAY OWN PROPERTY 239
are any, and for other wants. Wherefore, if any priest leave
a mission during the course of the year, he has not a right
to his proportion of the yearly income until the amount justly
due for expenses be deducted. In like manner, what he has
provided for the use of the church from the income of the
church for example, wax candles, wine for the most holy
Sacrifice, sacred furniture these he should leave behind him,
without any compensation, unless he can clearly show that
the supply is excessive.
" (10) All are aware that there are now in operation different
methods of raising money for the support of missions. The
following in particular we do not disapprove of, till the charity
of the faithful shall provide in a better way. They are:
(a) Letting of seats or places in the church to certain persons
or families at a fixed rent to be paid to the church, (b) Church
collections made at the Offertory, (c) According to a custom
prevailing generally in England, payment of a fixed sum,
according to the part of the church which they occupy, by
those who do not rent seats, yet are not content to occupy
what is called the free space, (d) Sermons by some distin-
guished preacher of the word of God, after which the alms
of the congregation, whose number is often swelled by a con-
course of strangers, are collected for the general or particular
use of the church or for some special purpose, (e) Collec-
tions which are either made from house to house, by persons
appointed for the purpose, or by societies and confraternities
lawfully appointed, or which are gathered from tens or hundreds
as is done in the excellent society called the Society for the
Propagation of the Faith, or contributions made by the more
wealthy portion of the congregation at fixed times or yearly.
" (n) Although it is certainly much to be desired that many
of these methods of maintaining the Church were done away
with, yet experience has taught that it is as yet impossible
altogether to dispense with them. Wherefore, in those places
where one or more of these methods prevail, they ought to
be so kept on that no innovations be introduced without the
authority of the Bishop. Especially the free space should
not be diminished nor narrowed without consulting him.
But whatever money comes to the mission by these means, it
should be considered as belonging not to the priest personally,
but to the general wants of the mission. Therefore, whatever
furniture, either sacred or domestic, he acquires from these
sources, or whatever he expends in keeping in repair the
church or other buildings in any way belonging to it, in this
240 PRECEPTS OF THE DECALOGUE
expenditure he is not making provision for himself, but is
providing for the mission from mission property.
" (12) As soon, therefore, as any priest enters on a mission,
an inventory of all property belonging to the mission should
be placed in his hands by the dean or by someone deputed
by the Bishop. The missionary is bound to keep the furniture
and buildings in good repair, yea, rather to improve them,
that he may deliver to his successor as much at least as he
received himself. Should he provide for the renewing of
what is grown old and mean, or procure something new and
more elegant to ornament the place, a distinction must be
made as regards the sources from which the expense is defrayed.
(a) If the priest has procured these things from his own
property, or from the gifts of friends well disposed towards
him, or in fine, from that portion of the income of the church
which he might have expended on his own decent maintenance,
they are to be considered as his own property, provided he has
kept all that he received in good order. (6) But if these things
were procured out of the general revenues of the church, or
by gifts and collections from the congregation, or by money
granted by the Bishop or the administrators of the tempor-
alities of the diocese, they are to be deemed entirely the property
of the mission, nor is it lawful for the priest on any account
to claim them.
" (13) It is also to be generally understood according to a
rule of canon law that things adapted for ecclesiastical purposes
given to a missionary are, unless there is proof to the contrary,
given to the mission; but things adapted for personal use are
presumed to be given to the priest personally, as, are also such
church things as are given by a flock to a priest as tokens of
gratitude or affection.
" (14) Retributions for Masses are the property of the priest.
In like manner, where it is the custom, which is a very ancient
one in England, of making presents to each priest at Easter
and Christmas, these gifts of right belong to them. But the
priest should be on his guard lest he incur the suspicion of
avarice, by receiving anything on account of his administering
the sacrament of Penance.
" (15) As to the application of money derived from stole
fees, there is no uniform practice throughout the whole Church.
For though the Church detests all filthy lucre in extorting or
exacting money for the administration of the sacraments, yet
the Council of Lateran, held under Innocent III in the year
1215, prescribed that the laudable customs in accordance with
WHO MAY OWN PROPERTY 241
which offerings were made by the faithful to the ministers of
the altar, on occasion of the administration of the sacraments,
should be observed. The proceeds derived from this source
should be ordinarily considered as belonging to the priests;
though they are distributed in different ways in different
places. That distribution seems to be the best which is
most conducive to alleviate the burthens of the mission.
" (16) Whilst, therefore, we forbid anything to be asked for
and much more anything to be exacted before the celebration
of baptism and matrimony, and even after the celebration as
a right, we leave it to the prudence of Bishops to determine
in their diocesan synods what seems best adapted to the
customs and state of places. Especially should they most
vigilantly correct all abuses, if any exist, as to the amount or
to the exaction of these offerings, by enforcing everywhere
an equitable arrangement."
These provisions seem to be in harmony with Canons 1182,
1519-1528, etc., of the new Code, and so it would seem that
they are still in force.
i.
16
CHAPTER IV
ON TITLE TO PROPERTY
TITLE is a cause sufficient to confer property in a thing. There
are several kinds of title, some derived from the natural law,
others due to positive law, and others which have their effect
from the will of private -persons. They may be reduced to
title by occupation, by accession, by prescription, and by
contract. On account of its importance and the abundance
of material we will treat of contract in a separate Book; the
other three titles must be considered here.
SECTION I
On Occupation
i. Occupation is the taking possession of some material
thing with the intention of making it one's own. It will be
a lawful title to ownership of property if the thing occupied
had previously no owner, and actual possession is taken of it
with the purpose of making it one's own. If these conditions
be fulfilled, it seems useless to investigate further how occupa-
tion is capable of conferring property. Whether the fact of
occupation sanctioned by the community is sufficient, or
whether we say that by occupation a man's latour is mingled
with the thing, and thus the connection of ownership is set
up, is really immaterial. It is a title universally acknowledged
and is derived from Nature herself.
As is clear from the definition, there cannot be occupation
without actual, or at least constructive, taking possession of
the thing, whether it be movable or immovable; it is not
sufficient merely to see the thing at a distance, nor is it enough
to take hold of it with the intention of seeing what it is, without
any idea of retaining it for one's own.
Most things of value, especially the land, have owners
already, and so a title to ownership by occupation can only
arise with reference to certain classes of property which are
not of very great importance. In moral theology this title is
at the root of ownership derived from finding lost property,
treasure- trove, and the capture of fish and wild animals.
242
ON TITLE TO PROPERTY 243
Here English law only partially agrees with what seems safe
in conscience.
2. The finding of things of value without an owner confers
ownership in the things found if they be taken possession of
with the intention of making them one's own. Whether they
ever had an owner or not is immaterial in conscience, provided
that they have none at present. English law, indeed, grants
property which belonged to someone who died intestate and
without heirs to the Crown, under the name of bona vacantia,
and when such property is claimed by the Crown, its title of
course prevails. If the Crown does not claim the property,
the first who should occupy it would seem to be safe in con-
science if he kept it. The same doctrine may be applied to
wreck found, which positive law requires to be delivered to
the receiver of the district, and this officer, if no owner appear
within a year, sells the same and pays the proceeds into the
Exchequer. '
3. Any money, coin, gold, silver, plate, or bullion, found
hidden in the earth or other private place, the owner thereof
being unknown, is called treasure-trove. By English law it
belongs to the Crown, but if the Crown does not claim it, the
finder would be justified in keeping it.
4. One who finds property that has recently been lost may
be bound in charity to take possession of it and try to discover
the owner, but there is no obligation to do so in justice. If,
however, he take possession of it, he is bound in justice to
take reasonable care of it, and to use ordinary diligence to
discover the true owner. On the true owner being discovered
the finder has a right to be compensated for any expenses he
has been put to in consequence of keeping the property, but
he must deliver it up to the owner. As English law does not
grant prescription in movables, this doctrine will hold even
though the owner be discovered after the lapse of years; if
the property still remains intact or in its equivalent, it belongs
to the original owner and must be restored to him. The
finder of lost property acquires thereby a qualified property
in it which is valid against all save the true owner, and if the
true owner cannot be discovered within a reasonable time, the
title of the finder becomes absolute, and he may use it as
his own.
5. Animals are either domestic, tamed, or wild. The
property in domestic animals such as dogs, sheep, kine, pigs,
always remain with the owner, however much they may stray,
as long as they are not so utterly lost that there is no hope
244 PRECEPTS OF THE DECALOGUE
of finding the owner. Such animals always belong to their
original owner as long as he can assert his ownership over
them, in the same way as his household furniture belongs to him.
Wild animals which enjoy their natural liberty and go where
they please belong as a general rule to him who first captures
or kills them. Such a one makes them his own by occupation,
for before he took them they belonged to no one. English
law has modified this general rule to some extent, for if a
trespasser capture or kill a wild animal on another person's
land, it belongs to the owner of the soil on which it has been
started and killed ; if a trespasser start an animal on one person's
property and kill it on another's, it belongs to the owner of
the former. These rules of positive law give the owner of
the property at least the right to vindicate his claim, which
cannot then be lawfully resisted by the trespasser.
Animals which have been tamed, such as pigeons, bees,
young pheasants that have been hatched under hens, belong
to their owner as long as they retain the habit of returning to
his premises, but if they lose that habit and recover their
natural liberty, they belong to the first who takes them, like
wild animals. Animals which are enclosed like deer in a park,
rabbits in a warren, or fish in a pond, belong to the owner of
the enclosure, as long as he can exert his control over them.
If they recover their natural liberty, they are primi occupantis.
A poacher may be guilty of sin by damaging the property
of another by trespassing on it, and from the fact that he
exposes himself to grave personal risk or to the danger of
violently resisting lawful authority if he is caught. By the
mere fact of capturing wild animals he does not commit a sin
against justice, unless he kills so many in a particular property
that the right of killing game therein is seriously lessened in
value, and the owner in consequence suffers considerable loss,
because, for example, he cannot let it at so high a price.
SECTION II
On Accession
i. Accession is the increase of property either by natural
production or by the union of one thing with another. When
this takes place, legal and moral questions arise as to the owner
of the increase. There are two leading maxims which settle
such questions, Res fructificat domino and Accessorium sequitur
principale. The maxim Res fructificat domino seems to follow
necessarily from the nature of property and ownership, for he
ON TITLE TO PROPERTY 245
who has the absolute ownership of something has a right to
reap the benefit of all that it is, of all its activities, and of all
that it produces. And so if the field is mine, I have a right
to the grass, wood, or other commodity which it produces.
If the tree is mine, I have a right to the fruit ; if the mare is mine,
I have a right to the foal; in the latter case the maxim Partus
sequitur ventrem is also applied.
Jurists and theologians divide fruits into natural, industrial,
mixed, and civil. Natural are such as grass, which grows
without human labour and care ; industrial are the product of
industry, as a book or a new invention; mixed are partly
natural, partly industrial, as a crop of wheat or potatoes ; civil
are such artificial fruits as rent from houses and land, interest
from money lent. In all these cases the maxim may be applied,
Res fructificat domino. In the case of mixed fruits, if the
material belongs to the labourer the whole produce will belong
to him; if the material, the field for example, belongs to some-
one else, then the owner of the field and the labourer whose
labour aided in the production of the crop have each their
right to a portion of the produce. Whether the crop be
divided, or a money equivalent be paid to one or the other, is
immaterial.
With regard to improvements made on land or in houses,
the general rule is that, Quidquid solo inaedificatur, plantatur,
seritur, solo cedit. However, first of all by custom, and in
modern times by statute, an outgoing tenant has a right to
compensation for the improvements he has made on his hold-
ing, provided that certain conditions have been fulfilled.
2. When one thing is added to another, the general rule
is that what is accessory becomes the property of the owner
of what is principal. And so the owner of land has the property
in gradual increments made to it by alluvion ; an island formed
in a river belongs to the owner of the bed. If a river suddenly
changes its course, or the sea suddenly retires, the rule does
not hold; the ownership remaining as before. If wood
belonging to another has been used in a building, the property
is transferred to the owner of the building, with the obligation
of making compensation for the wood. Similarly a painting
on another's canvas belongs to the painter, but he must pay
for the canvas. When a new form has been introduced into
the material, as by baking bread, making wine or oil, the
product belongs to the workman, but compensation must be
made for the material. The ownership is then said to be
acquired by specification. When liquids or solids belong-
246 PRECEPTS OF THE DECALOGUE
ing to different owners have been mixed, they should be
separated if possible, and each owner will retain his separate
property. If this is impossible, the former owners still retain
their right to a proportionate part of the whole or to its value.
SECTION III
On Prescription
1. As the term is used here in moral theology, prescription
is a title by which the ownership of property is gained or lost
through adverse possession during the time and in the manner
laid down by law.
In English law the term prescription is only used with
reference to incorporeal hereditaments i.e., rights and profits
annexed to or issuing out of land. Of these the chief are
advowsons, tithes, commons, ways, watercourses, lights,
offices, dignities, franchises, pensions, annuities, and rents.
Land and movables cannot be claimed by prescription. How-
ever, the Statute of Limitation, 3 & 4 William IV, c. 27, and
the Real Property Limitation Act, 1874, have the same practical
effect as Prescription Acts, with regard to real property, and
it will be convenient to consider them here as such.
The mere possession of property belonging to another even
for a lifetime would not of itself transfer the ownership to the
possessor. But as it is so much easier to prove possession
than ownership, and because those who have been in peaceful
possession of property for a long time should, not be liable
to be unwarrantably disturbed, and, moreover, in order that
owners of property may look after their rights, the legislature
has authority to confer a right to property, in consideration of
long and peaceable possession. This is what both ecclesiastical
and civil laws of prescription do, and these laws avail not only
in the external forum, but also in the forum of conscience.
2. In order that ownership of property may be transferred
by prescription, certain conditions are requisite either from
the nature of the case or by positive law. Theologians usually
reckon five such conditions viz.: (a) the property must be
such as the law allows to be prescribed ; (b) there must be good
faith in him who prescribes; (c) consequently there must be
some sort of title; (d) there must be possession (e) for the
time required by law.
(a) As prescription depends for its validity on positive law,
there can be no prescription which the law does not recognize.
English law does not recognize any title to movables by pre-
ON TITLE TO PROPERTY 24?
scription, as we have already seen. Ecclesiastical law acknow-
ledges a right of prescription to both movables and immovables.
Inasmuch as laymen cannot hold benefices, they cannot gain
a title to them by prescription, though clerics may do so.
(b) Good faith is the second condition required for prescrip-
tion. English law does not expressly require good faith, but
it is certainly required in conscience. He who prescribes
must not know that the property which is in his possession
belongs to someone else ; if he knows this, he can never become
its owner by prescription. This was defined by the Fourth
Council of Lateran, c. 41, and the reason is plain. 1 For as
soon as anyone is conscious that he has something which
belongs to another, he is bound to restore it to the owner,
and the longer he keeps it against the owner's will the more
grievous sin of theft does he commit. Positive law could not
by prescription transfer another's property to one who was
in bad faith, for such a law would not be for the common
good, but would foster crime. The user, then, by which
property is acquired by prescription must be without the
consciousness of wrongdoing; in one who frees his property
from a servitude by prescription, there will be good faith if
he put no obstacle in the way of the other's enjoying his right;
he is not required to warn him that prescription is running
against him. If during the time required for prescription a
doubt about the right to the property occurs to the possessor,
he must make all needful inquiries, and satisfy his conscience
that at least no one else has a certain title to the property in
question.
The time during which a predecessor in title held possession
of the property may be reckoned together with the period
during which the present possessor has held it in order to
complete the time required for prescription, if possession was
always held in good faith. Even if a predecessor in title was
in bad faith, this will not prevent a successor from gaining
a title by prescription, provided that the latter possesses the
property in good faith for the full time required by law.
(c) Inasmuch as good faith is required, as we have seen,
and this cannot exist without some colourable, supposed, or
at least presumed title, the third condition requisite for pre-
scription is some sort of title. The quality ot the title affects
the period of time required for prescription by ecclesiastical
law, as we shall see; no special title is expressly required by
English law.
1 Can. 1512.
248 PRECEPTS OF THE DECALOGUE
(d) No prescription can be had without uninterrupted, open,
and peaceable possession. The prescription must be nee vi,
nee clam, nee precario. It is precisely the possession for the
period required that furnishes the ground for the transference
of ownership by prescription. When the term is up the
property is vested in the possessor, who acquires also a right
to all the fruits, if any, which he has meantime reaped from
the property ; for what is accessory follows the principal.
(e) Different systems of law require different periods of
time for prescription, and the time varies with different kinds
of property.
A great change in the ecclesiastical law of prescription was
made by the new Code, as is clear from Canon 1508, which is
as follows: " The Church accepts for ecclesiastical property
prescription as a mode of acquisition and of freeing one's self
from burdens as it exists in the civil legislation of each nation
respectively, with the exceptions laid down in the following
canons." Canon 1509 exempts certain classes of property
from prescription, Canon 1510 lays down that sacred things
in the possession of private persons can be prescribed by
private persons, but that sacred things which are not in the
ownership of private persons can only be prescribed by a
moral ecclesiastical person against another moral ecclesiastical
person. In general one hundred years are required to pre-
scribe against the Apostolic See, and thirty years are required
to prescribe against other ecclesiastical moral persons, according
to Canon 1511.
The term required by English law for the acquisition of
rights by prescription varies according to circumstances. At
common law, time immemorial was required to establish a
prescriptive right, but the Prescription Act, 1832, provided
that with respect to rights of common, and all other profits or
benefits to be taken and enjoyed from or upon any land, where
there shall have been an enjoyment of them by any person
claiming right thereto without interruption for thirty years
next before the commencement of any action upon the subject
the prescriptive claim shall no longer be defeated by showing
only that the enjoyment commenced at a period subsequent
to the era of legal memory. It is also provided that the time
during which the adverse party shall have been an infant,
idiot, non compos mentis, or tenant for life, or during which
any action as to the claim shall have been pending and dili-
gently prosecuted, shall be excluded in the computation of
the period of thirty years. But where there has been an
ON TITLE TO PROPERTY 249
enjoyment for sixty years the claim is to be absolute and
indefeasible.
Rights of way and other easements, or any watercourse, or
the use of any water, to be enjoyed upon, over, or from any
land or water, and also as to the access or use of light to and
for any dwelling-house, workshop, or other building, are
prescribed after twenty or at least forty years, instead of thirty
and sixty respectively. An uninterrupted enjoyment of lights
for twenty years constitutes an absolute and indefeasible right
to them.
3. Prescriptive rights may be extinguished by abandonment,
express or implied; and after a period of twenty years' non-
use, or sometimes even after a shorter period, abandonment
will regularly be presumed. They are also extinguished by
operation of law when the dominant and servient tenements
come info the possession of the same owner in fee.
As we have seen, the right to real property is by the Real
Property Limitation Act, 1874, extinguished after twelve
years' adverse possession. The Limitation Acts which affect
the ownership of real property differ from other Limitation
Acts which concern personal property or a right of action in
that the latter only bar the remedy after the lapse of the time
fixed by law; they do not take away the right; the former, on
the contrary, extinguish the right.
The conditions for prescription in the United States are
in general the same as in England, except that as a rule a
period of twenty years is necessary and sufficient to acquire
both land and incorporeal hereditaments, and also to extinguish
those rights. In some States squatters who have cultivated
plots of land in good faith may become owners of them by
prescription in a shorter space of time than twenty years.
The subject of prescription is a thorny one in English law,
and it would be imprudent for a confessor not otherwise
specially skilled to venture to determine questions of right
by prescription. What has been said will, it is hoped, enable
him to judge how far conscience may follow the law, and when
a penitent should be recommended to consult a lawyer.
DIVISION II
The Violation of Justice
CHAPTER I
ON INJURIES IN GENERAL
i. THE wide term injustice may be used to designate any
violation of justice, whether it be legal, distributive, or com-
mutative. Sins against legal justice are committed by doing
anything against the common good of the society to which
one belongs, or by neglecting to do what the common good
requires to be performed. Such sins may be committed by
rulers and by subjects, more frequently, however, by the
former, inasmuch as the common good is specially entrusted
to their care and guardianship. As the separate members of
a society constitute that society, it is obvious that there is not
a perfect and adequate distinction between a society and its
members. In legal justice, therefore, which regulates the
relations which ought to subsist between men and the society
to which they belong, there is something wanting to the
complete distinction of persons required in order that the
obligations of strict justice may subsist between them. A
violation, then, of legal justice is not a sin against justice in
the strict and full sense.
Distributive justice prescribes that the ruler divide common
burdens and emoluments among his subjects according to
their capacity and merits. Before they are assigned to each
one, no one has a strict right to any determinate share of them,
and so a distribution of burdens and favours which is not
according to merit is not against strict justice. A ruler who
in his distribution of offices and burdens shows undue favour
to some to the detriment of others' sins indeed against strict
justice if he thereby cause damage to the community, for
strict justice and the implicit agreement which he made on
assuming his office forbid him to do that. If, however, no
special injury accrues to the community through his showing
undue preference for some of his subjects, he commits a sin
which is called acceptation of persons, but he does not sin
against strict justice. On the other hand, one who violates
35
ON INJURIES IN GENERAL 251
particular or commutative justice deprives another of his strict
right. Such a sin is called an injury, which may be defined
to be the violation of the strict right of another against his
reasonable will.
Such an injury is formal if it is committed knowingly and
wilfully, otherwise it is material.
A personal injury is committed against rights which are
intrinsic to the person, such as the right to life, liberty, good
name, and honour. A real injury is committed against the
property of another.
2. Personal injuries are treated of elsewhere under the
Fifth and Eighth Commandments; here we consider more
especially real injuries done to the property of another.
There are three different species of real injuries robbery,
theft, and simple damnification. Robbery, besides injury to
property, includes also a personal injury, which consists in
violence offered to another by forcibly depriving him of what
is his. Simple damnification is the causing of damage to the
property of another without taking away any of that property.
Theft is the secret taking away of the property of another
against his reasonable will.
3. No action is an injury unless it is against the reasonable
will of the injured person, scienti et volenti non fit injuria,
according to the twenty- seventh rule of law in the Sixth Book
of the Decretals. The reason is obvious; because a person
may as a rule renounce his rights, and then an action contrary
to them ceases to be a violation of justice. It is no longer a
depriving another of what is his ; it has ceased to belong to him.
There are, however, some rights which are inalienable, and
actions against these will be contrary to justice even if the
party wronged give his consent. No one can validly renounce
his right to life, and so the private killing of another, even with
his consent, except in lawful self-defence, is always murder.
Similarly, marital rights of married people are inalienable,
and, even if the husband consent, a wife's adultery is always
adultery. The maxim, then, must be understood of rights
which the owner can validly forego, and it asserts that no
injury is done by acting against rights which the possessor
with full knowledge and with perfect freedom does forego.
CHAPTER II
ON THEFT
i . THEFT, as we have seen, is the secret taking away of what
belongs to another against his reasonable wish.
Not only the taking away, but also the keeping of what
belongs to another against his reasonable wish is theft, as
when a borrower fails to return what has been lent him on the
day appointed, to the disappointment of the lender. More-
over, the use of, or any unlawful dealing with, the property
of another against his wish is theft, as when a tramp makes
himself at home for the night on another's premises, or when
a passenger travels on the railway or tram without paying
his fare.
In order that a sin of theft may be committed, the owner
of the property must be unwilling that it should be thus dealt
with by the thief; there is no theft committed by using another's
property if the user knows that the owner would not object.
Moreover, he must be reasonably unwilling, and so a man
who is in danger of dying from starvation, or who is in extreme
necessity of any other kind, may take or use what is necessary
to save life, even if the owner be unwilling that he should do
so. The reason of this is that, by the primary intention of
our Creator and Lord, material things were created for the
preservation of human life, and no rights of ownership can
prevail against the higher claim of one who is in extreme
necessity.
2. The sin of theft is of itself grievous, as is clear from the
fact that it is against justice and charity ; and St Paul classes
it among the sins which shut the kingdom of heaven to the
sinner. 1 However, like other sins of injustice, it is sometimes
venial on account of light matter, and a practical question here
arises as to when theft is a mortal sin, and when it is only
venial. The same question is put in other words when we
ask, What amount must be taken to constitute a mortal sin
of theft ?
3 . Theologians are agreed that we must distinguish between
the absolute sum, the taking of which is as a general rule
1 i Cor. vi 10.
253
ON THEFT 253
necessary and sufficient in all cases to constitute grave matter,
and the relative sum, which will be sufficient for grave matter,
regard being had to the loss of the owner. The general
principle on which the quantity required for grave sins depends
is the damage caused by the theft. For it is a grave sin to
cause grave damage without a just reason ; but in the case of
very rich persons or companies we must consider not only
the personal and particular damage done to them by theft of
what belongs to them, but also the harm done to society. It
may well be that a rich millionaire would not be appreciably
worse off for the loss of a hundred pounds or of ten times
that sum. The damage done to him by a thief taking a
hundred pounds would be relatively less than if sixpence
were taken from a day labourer. However, we must also
consider the harm done by theft to the community and to the
security of property. The malice of sin is not measured
merely by the harm done to the individual ; the harm done to
society and other considerations also enter into the estimate.
We must, then, besides considering the damage done to the
owner of stolen money, weigh also the harm which theft does
to society. And if grave harm is caused to society by stealing
a certain sum of money, if the security of property would be
seriously imperilled unless the theft of a certain sum were
forbidden under pain of mortal sin, that sum will be the abso-
lute quantity required for a mortal sin of theft. What the
precise sum is must be left to the judgement of experts, who
will consider all the circumstances of time and place, for, as
values are perpetually changing, the sum required for a mortal
sin of theft will also change. Under present circumstances,
in civilized countries where similar conditions of commerce
prevail, the common opinion of theologians fixes one pound
sterling as the absolute sum required for a grave sin of theft.
This will serve, therefore, as a measure of the gravity of theft
from very rich people, or from companies with large resources.
However, a mortal sin of theft may be committed by stealing
a much less sum than one pound if the theft cause great harm
to the owner of what is stolen. The loss of a day's wage or
of a sum which is sufficient for the support of a labourer and
his family for a day, is a serious loss for a workman, and so,
as the common opinion holds, the theft of such a sum from
a labouring man is a grave sin. Something between this and
the absolute sum will be grave matter if stolen from persons
whose wealth is between the two extremes.
Matter which in itself is grave may become light on account
254 PRECEPTS OF THE DECALOGUE
of special circumstances. Thus although grave necessity does
not excuse theft, yet it may lessen the sin and cause to be
venial what would otherwise be mortal. In the same way,
less unwillingness on the part of the owner may lessen the
sin. A father is less unwilling as a rule that a little of his
money should be taken by a member of his family, especially
if it is for a good purpose, than by a common thief. On this
ground some divines say that in thefts from parents a double
quantity is required for grave matter. Also when a number
of small thefts are committed, which in the aggregate amount
to grave matter, a larger sum is required for a mortal sin than
when it is all taken at once. For the loss is not felt so keenly,
and so the owner is not so unwilling.
4. That small thefts may coalesce and constitute grave
matter is certain, for by a number of small thefts grave harm
may be done, and the opposite opinion is implicitly condemned
by the 38th proposition condemned by Innocent XI. Small
thefts coalesce if the intention of the thief is to take a con-
siderable sum, but for some special reason he takes it in small
quantities at different times. Similarly, if a number conspire
together to steal from another, they will all commit grave sin
if grave damage be inflicted, even though each one only, obtains
a small sum. Also, when the proceeds of pilferings are
hoarded, grave sin will be committed when grave matter is
reached, or even if the proceeds be spent and do not coalesce
by accession as in the preceding case, the different pilferings
will coalesce and constitute one moral act of injustice if the
interval be not notable not over two months as some
theologians say. -On the other hand, small thefts committed
at wide intervals of time, and which do not coalesce on account
of any of the reasons given above, do not constitute one moral
act, and remain so many venial sins of theft.
The theft of something of small money value, but whose
loss is very keenly felt for reasons of affection or association,
will be a venial sin against justice, but a mortal sin against
charity, if it was foreseen that its loss would cause very serious
pain to the owner.
DIVISION III
On Restitution
CHAPTER I
ON RESTITUTION IN GENERAL
WHEN other sins have been committed they are blotted out
and reparation as far as possible is made for them by sincere
sorrow and repentance. But when commutative justice has
been violated it is not sufficient to be sorry for the injustice
done; reparation must be made for it by putting, as far as
possible, the person injured in the same condition as he would
have been if the injury had never been inflicted. This repara-
tion for an injury that has been done to another is called
restitution. There is a strict obligation in justice to make
restitution as far as is possible to another whom one has injured ;
for justice requires that each one should have his own; but
one who has been injured is deprived of his own so long as
restitution has not been made ; and so, in order that each one
may have his own, in order that that equality may be preserved
which justice prescribes, restitution is of strict obligation
whenever commutative justice has been violated. It is an
obligation of justice, and so it is a grave one, unless the matter
be light.
As justice may be violated either by taking away from
another what belongs to him, or by damaging or destroying
his property, so we may consider restitution as being due
either because one has what belongs to another, or because
he has inflicted on him unjust damage and loss. These are
called by theologians the roots of restitution. We will treat
of them successively, and finally of the obligation of making
restitution on account of co-operation in injustice.
255
CHAPTER II
THE FIRST ROOT OF RESTITUTION
THE first root of restitution is the possession of another person's
property without any just title. This possession may hitherto
have been in good faith without any suspicion that the property
belonged to somebody else, or it may have been in bad faith
with the knowledge that someone else was the rightful owner,
or in doubtful faith with doubts about the ownership. The
obligations of the possessor of another's property will be
different in these three cases. We will treat of them in the
three following sections :
SECTION I
Possession of Another's Property in Good Faith
1. When one discovers that he is in possession without any
just title of what belongs to someone else, justice requires
that he should restore it to the rightful owner, or at least
give the owner warning so that he may remove it at his own
expense. For justice requires that all should have their own,
res clamat domino, and if one knowingly detains what belongs
to another against the owner's reasonable wish he commits
the sin of theft.
If the possessor of another's property consumed it while
he was in good faith, and now when he finds out the truth,
he neither has the property itself nor its equivalent, he is
bound to nothing, res perit domino. The property no longer
exists, and cannot be restored to its true owner ; there was no
fault committed by consuming what was supposed to belong
to the consumer, so there is no obligation to make compensa-
tion to the owner for his loss. This is all the more true if
the property was destroyed, or perished by accident, or in the
ordinary course of nature.
2. If any natural or civil fruits, derived from the property
of another, still remain after the possessor has found out that
the property belonged to someone else, he must restore them
to the owner of the property to whom they belong, for res
fructificat domino.
256
THE FIRST ROOT OF RESTITUTION 257
Fruits of his own industry acquired on occasion of his
possession of the property of another, he may keep, for the
labourer has a right to the fruit of his toil.
Mixed fruits, which are partly due to industry, partly to
the natural or artificial fertility of the property, belong partly
to the labourer, partly to the owner of the property, according
to what the law may prescribe, or according to the estimate
of a prudent man.
3. The foregoing rules tell us what has to be done when one
discovers that he has possession of the property of another,
or when such property has perished while in his possession.
But suppose that while he was in good faith the possessor of
another's property, he sold it to someone else, and afterwards
he finds out that it was not his to sell, what are his obligations
in that case ?
No general answer can be given ,to this question; it will
be necessary to distinguish according to several possible
hypotheses.
The sale may have taken place in market overt, and then
though the seller could not give a valid title to the property,
yet the law does so. The Sale of Goods Act, 1893, sec> 22
makes the following provision: "Where goods are sold in
market overt, according to the usage of the market, the
buyer acquires a good title to the goods, provided he buys
them in good faith and without notice of any defect or want
of title on the part of the [seller."
According to Indermaur, " By sale in market overt is meant
selling goods in open market as opposed to selling them
privately. In the country the market-place or piece of ground
set apart by custom for the sale of goods is in general the only
open market there ; but in London, and in other towns where
so warranted by custom, a sale in an open shop of proper
goods is equivalent to, and in fact amounts to, sale in market
overt." 1
In spite, however, of sale in market overt, " Where goods
have been stolen and the offender is prosecuted to conviction,
the property in the goods so stolen revests in the person who
was the owner of the goods, or his personal representative,
notwithstanding any intermediate dealing with them, whether
by sale in market overt or otherwise." 2
In this case " on conviction of an offence which involves
larceny, the court, if the accused has sold the property to an
1 Principles of the Common Law, p. 323, 6th ed.
2 Sale of Goods Act, i8g3j sec. 24.
i. I7
258 PRECEPTS OF THE DECALOGUE
innocent purchaser, on restitution of the property to the owner,
may order the price paid by the purchaser to be repaid to him
out of any money found on the convict when arrested. This
provision is in addition to that allowing compensation to a
person injured by a felony." 1
If the sale did not take place in market overt, and the stolen
property has not been restored to the true owner, the seller
is bound to nothing in justice, according to a very probable
opinion. For the property is no longer in his possession or
under his control, so he cannot restore it to the owner ; if he
received money for it, he received it in good faith for value,
and when he has mixed it with his other moneys it would seem
that he makes it his own. 2 It would seem that this is in
accordance with English law: " A mesne possessor acquiring
the goods innocently from the thief, and reselling before con-
viction, is under no obligation in trover to the original owner." 3
It was said above that the seller is bound to nothing in
justice, but if without relatively serious inconvenience to him-
self he can, by giving the requisite information, procure the
restoration of the property to its rightful owner, he will be
bound to do this out of charity.
If the property was not sold in market overt, and if it has
been restored to the rightful owner, the purchaser can demand
back the purchase money from the seller, rescinding the
contract for failure of warranty which is implied in every such
sale: " In a contract of sale, unless the circumstances of the
contract are such as to show a different intention, there is:
(i) An implied condition on the part of the seller that in the
case of a sale he has a right to sell the goods, and that in the
case of an agreement to sell he will have a right to sell the
goods at the time when the property is to pass ; (2) an implied
warranty that the buyer shall have and enjoy quiet possession
of the goods." 4
These solutions would seem to be tenable whether the
mesne possessor obtained the property in good faith by pur-
chase or by gift, and whether he gained anything or not by
selling it. For although one who possesses another's property
either in itself or in its equivalent is bound to make restitution
to the owner, a mesne possessor who has sold it in good faith
to another no longer possesses it even in its equivalent, for the
1 Encyclopedia of Laws of England, s.v. Stolen Goods.
2 Stephen, 2, p. 60.
3 Encyclopedia of Laws of England, s.v. Stolen Goods.
4 Sale of Goods Act, 1893, sec. 12.
THE FIRST ROOT OF RESTITUTION 259
price after being mixed with his own moneys is not its equiva-
lent ; and although he is the richer by the transaction, yet it
cannot be said that he is the richer unjustly, and so he is not
bound to restitution. 1
It is a disputed point among theologians whether a pur-
chaser in good faith from a thief of stolen goods, on finding
out that the goods were stolen, may return them to the seller
if he cannot otherwise get back his money. It would seem
that in conscience he may do so, for in so doing he does not
wrong the rightful owner; he replaces the goods where he
found them, so to say, and they are in no worse a position
through having been for a time in his possession. He is
justified in leaving them there if he cannot otherwise save
himself from loss. 2 Such an action, however, might bring him
into collision with the law of the country. In England it might
amount to misprision of felony or be considered compounding
a felony.
SECTION II
Possession of Another's Property in Bad Faith
1. When one has wrongfully had possession of another's
property, well knowing that he had no right to keep it, on
coming to a better frame of mind he is bound in the first place
to restore the property itself to its rightful owner. Moreover,
if the owner has suffered any special loss through being deprived
of what belongs to him, the thief must make this good, inas-
much as he was the unjust cause of it. Furthermore, all
natural or civil fruits of the property he must restore to the
owner, for res fructificat domino ; and if they have been con-
sumed, their value must be given to him or else he will not
have his own. Any fruits which are due to the industry of
the thief, and all necessary and useful expenses which he
incurred in respect of the property, he may in conscience
deduct from what must be restored to the owner, for justice
only prescribes that each one should have his own, not more
than his own.
2. If another's property is saved from fire, or from certain
destruction in any other way, it still belongs to the former
owner, for res clamat domino. At most, he who saved it has
a claim to reasonable compensation for his trouble. If stolen
goods perish in the hands of the thief, he must make restitution
for them to the owner, unless they would have perished in the
1 Bucceroni, i, n. 1341. a St Alphonsus, 3, n. 569.
260 PRECEPTS OF THE DECALOGUE
owner's hands at the same time and in the same way. For
if they would have perished at the same time and in the same
way, the thief is not the cause of their destruction : otherwise
he is, and he must bear the consequences.
If stolen property had different values after the theft, the
owner's losses must always be made good ; and so if he intended
to sell it when at its highest value, that value must be restored
to him. Usually, however, if the property itself cannot be
restored, it will be sufficient to restore the value which it had
at the time of the theft. This is the teaching of many theo-
logians and it seems to be in agreement with the provisions
of English law: " The measure of damages in an action for
conversion is the actual loss sustained by the wrongful act.
In general, this would be the market value of the goods at the
time of conversion. . . . And the jury on the trial of an
action for conversion may also give damages in the nature of
interest over and above the value of the goods converted." 1
SECTION III
Possession of Property in Doubtful Faith
1 . There is only question here of one who has well-grounded
reasons for thinking that something in his possession belongs
to another. We do not contemplate the case of one who
merely suspects without solid reason that what he has belongs
to someone else, much less the case of one who is ignorant
of what title he has to his property. The doubtful faith of
such a one as we are contemplating may date from a period
subsequent to his obtaining possession of the property, or it
may date from the time of his gaining possession of it; the
possessor's obligations will be different as one or the other
of these suppositions is verified.
2. When the possessor was at first in good faith but after-
wards a doubt arose as to whether the property really belonged
to him, inquiry must first of all be made to try and find out
the true owner. Unless the possessor in doubtful faith does
this, he exposes himself to the danger of keeping what does
not belong to him, and thereby sins against justice. If he
discovers the rightful owner, the doubt is solved; if after
inquiry the question of ownership still remains doubtful,
the possessor may keep the property and use it as his own,
for in dubio melior est conditio possidentis.
1 Encyclopedia of Laws of England, s.v. Conversion, Action of.
THE FIRST ROOT OF RESTITUTION 261
3. If the possession began in doubtful faith, and the pro-
perty was taken from another's possession, injustice was
committed, and the whole must be restored to the original
possessor, for possession was in his favour.
If the property came into the hands of the doubtful possessor
by sale or gift, or in some other lawful way, presumptions
may sometimes be used to solve the doubt. Thus, even
though we get a more than usually cheap bargain, we need not
conclude that the seller is a thief, for nemo mains praesumitur
nisi probetur.
If the doubt cannot thus be settled, nor the question of
ownership cleared up by diligent inquiry, theologians commonly
teach that the property must be divided according to the
probabilities of the case. For one who began to possess in
doubtful faith cannot claim the benefits of possession and
keep the whole. He may, however, keep a portion correspond-
ing to the degree of probability of his right of ownership. A
few recent theologians, however, doubt whether this solution
rests on solid grounds, for even the possessor in doubtful
faith has at least the fact of possession in his favour, and,
ex hypothesi^ it is not certain that he is not the rightful owner ;
in fact, he has some claim to be considered the rightful owner.
These theologians, therefore, would permit the possessor in
doubtful faith to retain the property, provided that he be
ready to surrender it to the rightful owner if and when he
should appear. 1
1 Bucceroni, i, n. 1354.
CHAPTER III
THE SECOND ROOT OF RESTITUTION
SECTION I
On Damnification in General
i. WHOEVER wilfully causes unjust damage to another, even
though he himself obtained nothing by his unjust action, is
bound to make restitution to him as far as he can. For he
is the unjust cause why another has not what belongs to him,
and in order that justice may be done he must cause the person
damaged to be put as far as possible in the same condition
as he was in before the damage was done. He must then
make restitution not only for all the damage which he inten-
tionally caused, but for all consequent losses as far as they
were in general foreseen.
2. In order that such an obligation may be imposed, certain
conditions must be fulfilled which it will be well to state more
explicitly.
(a) The damage must be inflicted voluntarily, with know-
ledge and the will to do the wrong. For a man is only respon-
sible in the forum of conscience for his free and voluntary
actions. There must be theological fault, as theologians
express it, otherwise there will be no obligation in conscience
to make good any damage, at any rate before lawful sentence
of a judge competent to impose such an obligation. For the
law sometimes imposes the obligation of making good damage
which has been done, even though it was not foreseen or
intended. This is especially the case when there has been
legal negligence or the omission of that diligence which the
law requires in the circumstances. There are three degrees
in this negligence: " Ordinary neglect has been defined to be
the omission of that care which every man of common prudence,
and capable of governing a family, takes of his own concerns ;
gross neglect is defined to be the want of that care which every
man of common sense, however inattentive soever, takes of
his own property ; and slight neglect to be the omission of that
diligence which very circumspect and thoughtful persons use
262
THE SECOND ROOT OF RESTITUTION 263
in securing their own goods and chattels." 1 In some cases
the law punishes even slight neglect, in others ordinary, in
others only gross neglect. The omission of that care which
the law requires in the case is called juridical fault, and after
sentence there will be an obligation in conscience to make
good damage caused through juridical fault, for the laws
prescribing this are just, inasmuch as they make men more
careful and conduce to the public good.
If something has been done without foreseeing that it
would cause damage to another, but this danger was noticed
before the damage actually took place, there will be an obliga-
tion in justice for him who performed the action to prevent
the damage as far as he can; if he does not do this, he will
be bound to restitution. For as long as he can prevent the
evil consequences of his action, this is under his control, and
may, from the point of view of morals, be considered as con-
tinuing, and thus, unless he prevents the evil when he can
do so, the agent is the voluntary cause of it. If, however, he
cannot prevent the damage without relatively serious incon-
venience to himself, there is just cause for excusing him. And
so, if I inadvertently throw a lighted match on the ground,
and then notice that it may probably cause a conflagration
with loss to others, I am bound in justice to extinguish the
light, otherwise I must repair the damage done.
If slight negligence caused slight damage to another, there
will be an obligation of repairing it under pain of venial sin.
If slight negligence caused serious loss to another, there is
a difficulty as to whether before any judicial sentence there
be an obligation to make restitution. Many theologians deny
that there is, for no grave obligation can arise from a slight
fault, and a light obligation has no proportion to serious
matter; there cannot be a light obligation to avoid homicide,
for example. 2
(b) In order that there may be an obligation to make resti-
tution for causing damage to another, the damage must be
really and objectively unjust. If damage to another follows
from the lawful exercise of my rights, I am not bound to make
it good. If I dig a well in my property and thereby deprive
my neighbour of his supply of water, I am not bound to
make restitution for the damage. Similarly, I may sell a new
machine or invention, though it may indirectly cause loss to
many who had on sale machines of older pattern for which
1 Chitty, The Law of Contracts, p. 412.
2 St Alphonsus, 3, n. 552.
264 PRECEPTS OF THE DECALOGUE
now there will be no market. I may lawfully use persuasion
to induce a rich relative to leave his money to me, though
others who would have had it thereby suffer loss. If, how-
ever, I make use of unjust means such as threats, violence, or
calumny, and so prevent another from getting what he other-
wise would have got, I commit a sin against justice and am
bound to make restitution to the injured party. This is true
even though he had no strict right to what he would have got,
for at least he had a right not to be balked of his expectations
by unjust means. And so in a competitive examination or
concursus where something of value is the prize at stake, one
who secures the prize by unjust means must make restitution
to him who would otherwise have secured it. If there were
no certainty of his securing it, restitution as far as possible must
be made according to the degree of probability of his success.
(c) The unjust action must be the cause, not merely the
occasion, of damage being done to another, in order that there
may be an obligation of making restitution. For we are only
responsible in justice for damage which we have caused. And
so if I commit theft and others are induced to do the same
by my bad example, I am indeed bound to make restitution
for what I have stolen, and I commit a sin against charity
by giving bad example to others ; but probably at least, accord-
ing to many theologians, I am not bound to make restitution
for what others stole through my bad example. Similarly, I
am not bound to make restitution for damage which was
caused accidentally by my action, when there was antecedently
no probable connection between my action and the damage
caused. As, for example, if I lit a fire in my property, and
there was no probable danger of its causing damage to my
neighbour, I am not in conscience before judicial sentence
bound to make good damage which it caused him on account
of an unforeseen change in the direction of the wind. Some
theologians would bind the man who lit the fire to restitution
in this case if he hoped for the change of wind and intended
the damage. They say that the wrongful intention supplies
the want of physical causation and puts him under the obliga-
tion of making restitution. This opinion is probable, but the
opposite also is probable, for although the evil intention makes
the man guilty of affective injustice, he is not guilty of effective
injustice, for his evil intention makes no difference in the
physical sequence of cause and effect, and if he was not the
cause of the damage prescinding from his evil intention, that
evil intention could not make him the cause.
THE SECOND ROOT OF RESTITUTION 265
In the same way, if the theft of one servant is wrongly im-
puted to another, and this one is dismissed in consequence,
the thief is not bound to make restitution to the injured man
unless in some way he caused the false imputation.
One who is not sure whether any harm was caused by his
action is not bound to make restitution, for a certain obligation
cannot arise from an uncertain source. Whether there is any
obligation of making restitution for damage which was certainly
caused, but it is uncertain whether the author was A or B, is
a disputed point among theologians. Many teach that there
is an obligation on all the probable authors in common to
make good the damage, and each will be bound to make good
the whole in default of the rest. This is certainly true in case
of conspiracy; but if each acted independently, and it is not
certain which one caused the damage, it is hard if the burden
of restitution is imposed on someone who perhaps did not
cause the harm. 1
If an incendiary intended to set fire to the house of A, and
by mistake he destroyed the house of B, it would seem that he
is bound to make restitution, for all the requisite conditions
are present. His action was voluntary, really, and effectively
unjust. Some theologians, however, deny that the obligation
of making restitution can be imposed in such cases. For the
injury should be formal, and they deny that it is formal in
this case. He did not intend to injure B; it was purely by
mistake that his house was burnt down. Some weight must
be allowed to this opinion on account of the authority of those
who maintain it, but it would seem to be over-subtle and
against the common sense of mankind. The injury was
formal, inasmuch as it was voluntary and knowingly unjust.
This is sufficient to induce the obligation of making restitution ;
it is not necessary that the wrongdoer should intend to injure a
definite person.
SECTION II
Particular Cases of Damnification
i. He who by fraud, violence, or other unjust means leads
another to commit sin, or deprives him of any supernatural
or natural good belonging to the soul and mind, is guilty of
injustice, and is bound to make reparation to the injured party.
If the same effect is produced by persuasion or other not unjust
means, a sin of scandal is committed ; but justice is not violated,
1 Bucceroni, i, n. 1369.
366 PRECEPTS OF THE DECALOGUE
nor is there any obligation to make restitution. These prin-
ciples are not only applicable to sin, but to vocation to the
religious state and to sound doctrine, especially of the practical
order.
Priests or masters, who by their office are bound to instruct
others and teach them the truth, are in a special manner
obliged to correct any false instruction which they may have
given. Better leave people in ignorance than imbue their
minds with falsehood.
2. There is a controversy among theologians as to whether
there is an obligation apart from the just sentence of a judge
for one who has injured another in one species of goods, as,
for example, in his reputation, to make restitution to him in
goods of another order, as, for example, in money. A com-
petent judge may, of course, impose such an obligation accord-
ing to the rules of equity; but apart from positive law the
opinion which denies any strict obligation to do this seems
the more probable. For if justice imposed such an obligation,
equality would have to be secured between the injury inflicted
and the compensation paid. This however, seems impossible
in such a case, for there is no common measure of reputation
and money. Moreover, however large a sum of money were
paid in compensation for detraction, the reputation which had
suffered would not thereby be restored. Justice, however,
requires that what has been taken away should be restored, not
something else.
3. When one has injured another's reputation by slander
or detraction, he is under a grave obligation in serious matters
to restore his neighbour's good name as far as he is able, and
to make reparation for all other damage which the injured
party has suffered in consequence of the slander or detraction.
If he has lost his position or money, restitution of these must
be made as far as possible. We saw above that more probably
the detractor is not bound to pay money precisely in com-
pensation for the injured reputation, unless condemned to do
so by competent authority. The mode of restoring the injured
reputation of another will vary according to circumstances.
If no other way presents itself, the slanderer must say that he
spoke falsely, for the reputation of the innocent is of more
consequence than that of the guilty. A detractor who has
injured the good name of another by making known his secret
sin, cannot, of course, say that he spoke falsely, but he must
do what he can in some other way towards the desired end.
There will be no obligation to do anything if the calumny or
THE SECOND ROOT OF RESTITUTION 267
detraction has been forgotten, or if the injured party has lost
his reputation in some other way, or if the injured party prefers
that the matter should not be reopened, or if it is physically
or morally impossible now to do anything towards restoring
his good name.
4. One who has unjustly wounded another, according to
the more probable opinion, as we have seen, is not bound to
make compensation in money for the wounding or mutilation.
He is, however, bound to make restitution for all expenses to
which his action has subjected the injured man, and for all
other money losses which followed in consequence of loss of
work, position, etc., and which were in some way foreseen by
the wrongdoer. If the injured man dies, restitution must
be made to his heirs or legatees for all the expenses he was
put to or the losses he suffered on account of the unjust action.
If, in consequence of the injury inflicted, the injured man
cannot provide for wife, children, or parents, or if death
ensued, the wrongdoer will be obliged to provide at least
what is necessary for their support. For these had a right
not to be deprived of their support by the unjust action of
the wrongdoer. There are no necessary heirs according to
English law, and it is a controverted point whether restitution
is due to other heirs, relatives, or creditors who have suffered
damage from the injury inflicted. It is probable that inasmuch
as injury to such people is not necessarily connected with unjust
wounding or homicide, and only follows from it in a remote
and accidental manner, there is no obligation to make com-
pensation to others besides the above-mentioned. 1
Whether the injured man can release the wrongdoer from
the obligation of providing for his family who are dependent
on him is a disputed point among divines. Many approved
theologians hold the affirmative on the ground that the family
acquire their right to compensation through the injured man,
who therefore can release the wrongdoer from all obligation
to make restitution. This opinion is certainly probable, and
so in case of a duel where both parties have freely consented
to fight, and therefore freely accept the consequences of their
action, there will be no strict obligation for the victor to make
any compensation for wounding or killing his adversary.
5. Scienti et volenti nonfit injuria ; and so if a woman suffers
loss of reputation, position, or money, in consequence of
fornication freely committed, no restitution will be of strict
obligation. Even for criminal assault or rape no restitution
1 Lugo, disp. ii. n. 77.
268 PRECEPTS OF THE DECALOGUE
in money is of obligation to compensate precisely for the loss
of virginity. But the man who has been guilty of this crime
must make restitution for other losses, and either by marrying
the woman wronged or by providing her with a dowry, he
must, as far as possible, put her in the position in which she
would have been if he had not wronged her.
6. No money compensation is of obligation on account of
adultery when no child has been born of the adulterous inter-
course. If a child has been born, and loss ensues to the
husband who is compelled to support a child which is not his,
or to the family because one who has no right comes in for
a share of the inheritance, compensation must be made by
the guilty parties. Great difficulties would arise if an adul-
terous wife made known her crime to her husband, so she is
not bound to do this ; nor is a child bound to believe the sole
assertion of his mother that he is illegitimate. Compensation
must be made in other ways as far as possible. In practice,
however, if husband and wife are living together, it will rarely
be certain whether a child that is born is the fruit of adultery
or not, and the presumption is that it is legitimate. If they
are not living together, the adultery will be patent to the
husband, and if he consents to support the child and treat it
as his own, the obligation of the adulterer will cease.
CHAPTER IV
ON CO-OPERATION IN INJUSTICE
THE question of restitution is complicated and beset with
special difficulties when there are more agents of injustice
working together than one. There will, indeed, be the same
roots of restitution which we treated of above, but difficulties
arise as to who among the co-operators is bound to make
restitution, and who is primarily bound. One may help
another, or co-operate with another, in inflicting an injury in
various ways. Nine ways are commonly enumerated: by
counsel, by command, by consent, by provocation, by praise
or flattery, by being partner in the sin, by silence, by conceal-
ment, by defending the ill done. In the first six of these ways
the co-operation is positive, in the last three it is negative.
Something must be said about each (cf. Can. 2209).
i. One co-operates with another in injustice by counsel
when, by giving advice or by urging motives, or by showing
how it may be done, he causes that other to commit an act of
injustice. Such a one is obviously the moral cause of the
injury, and all the conditions required for imposing an obliga-
tion of making restitution are present. If the principal agent
was already determined to commit the injury, this will in that
case not be due to the counsellor, and he will not be bound
to repair it. Nor will the counsellor be bound to make repara-
tion to the principal agent for any loss which the latter suffered
in consequence of inflicting the injury, unless he induced him
to act by fraud or other unjust means. Moreover, if before
the injustice was committed the counsellor efficaciously with-
drew his advice, and proposed equally strong motives for
desisting from the act, it would seem that he cannot be obliged
to make restitution. If, however, he had showed the other
how to commit the crime and thus made it possible, he must
take means to prevent it being committed, otherwise he will
be responsible. Confessors, lawyers, doctors, and others
whose expert advice is asked are under a special obligation
not to give advice which is injurious to their clients or to third
parties. If they do this, they will be bound to make com-
pensation to the injured party not only when they acted
269
270 PRECEPTS OF THE DECALOGUE
maliciously, but also when they gave injurious advice through
gravely culpable ignorance or precipitancy. Others who do
not specially hold themselves out as experts will not be bound
to compensate those who ask their advice and suffer loss
through following it. No injury was done by giving them
what they asked for, no fraud was committed by the assump-
tion of skill or knowledge which was not possessed; if they
chose to follow the advice, they took the risk on themselves,
and scienti et volenti nonfit injuria.
He who follows unjust advice acts in his own behalf and in
his own name, and so is the principal cause of the injury done.
He is bound in the first place to make restitution, and if he
fail to do so, the counsellor is bound.
2. We co-operate in injustice by command when by what-
ever means we induce another to do an injury in our name
and on our behalf. It does not matter whether one of the
parties is in a position of superiority with respect to the other
or not, nor by what means he induces the other to perform
the injurious action, whether by threats, or promises, or com-
. mands, or requests ; it is sufficient if by any means he induces
the other to do his unjust will. Henry II made himself guilty
of the blood of St Thomas a Becket by complaining that none
who ate his bread would avenge the insults offered him. Mere
approval, however, of injustice which has already been done
does not render him who approves liable to make restitution.
One who by command induces another to commit an injury
is bound in the first place to make reparation for the injury
and for all the damage which was the necessary consequence.
In his default the instrument of his injustice is bound to make
restitution. The one who gave the command is not bound
to compensate his agent for loss or damage which he suffers
in executing the will of his principal, unless compulsion or
other unjust means were used to procure his co-operation.
Nor is he bound to make restitution for damage which his
agent did in excess of the instructions given. Furthermore,
if before the command is executed he recalls it and the recall
is notified to the agent, he will not be responsible for what the
agent may do on his own authority; he will be responsible,
however, if by any chance the intimation that the command is
recalled does not reach the agent.
3. One who co-operates in injustice by giving his consent
or vote that the unjust action should be done is bound to
make reparation if his consent was the moral cause of the
injustice. And so members of legislative bodies who agree
ON CO-OPERATION IN INJUSTICE 271
together to pass an unjust law are jointly and severally bound
to make reparation for all the harm that the law does. Jury-
men, too, whose vote is necessary for an unjust verdict are all
responsible for the injustice if they give the verdict. Some-
times, however, when injury is inflicted by the unjust votes
of many, the obligation of making restitution will depend on
the manner of voting. If all acted conjointly, giving their
votes in a body, each and all will be responsible for the harm
done; if, however, the voting took place successively, those
who voted first and whose votes were necessary and sufficient
for passing the unjust measure will indeed be bound to make
restitution ; but those who voted subsequently, and whose votes
were not required to make the measure law, may be excused
from the obligation of making reparation except in the case
of conspiracy, though they, too, sin against justice. Those
who give an unjust vote when it is the only means of preventing
a greater evil do not do wrong, and are not bound to make
restitution. When one of two evils is necessary, we may
lawfully choose the less.
4. Whoever by provocation or ridicule, or by praise or
flattery, causes another to commit an injury, or is the cause
why reparation is not made for injustice committed, is himself
bound to make restitution in the same way as one who is the
cause of injustice by counsel.
5. One may be a partner in the infliction of injuries in
various ways. He who helps another to perform an unjust
action is a partner in injustice in the strict sense. One, how-
ever, who receives stolen goods or affords protection to a
wrongdoer, and so encourages him in committing injustice,
is also a partner in his sin. A receiver of stolen goods is
obviously bound to restore them to their owner, and if by
holding himself out as ready to receive them, or by affording
protection to the thief, he is the cause of injustice being com-
mitted, he will be responsible for that too. To what extent
the partner in injustice is bound to make restitution will depend
on circumstances. He will be responsible for the whole
damage inflicted if it could not have been inflicted without his
help, or if the partners conspired together to commit injustice.
Otherwise it will be sufficient to make reparation for such part
of the damage as each respectively caused, in the estimation
of a prudent person.
When treating of charity we saw that it was never lawful
to co-operate formally in another's sin, but that according to the
principle of a double effect it is sometimes allowed to co-operate
272 PRECEPTS OF THE DECALOGUE
materially in the sin of another. This doctrine may be applied
to the matter before us, and so though it is never lawful to
help another to do what is always and intrinsically wrong, as
to kill an innocent person, yet in other cases it is not sinful
to co-operate materially with the unjust action of another.
A servant who is threatened with instant death unless she
gives up a key to a robber, or shows where her master's money
is kept, would act heroically if she died rather than betray her
trust ; she would not commit sin if she preferred her own life
to her master's property.
6. On account of one's office, or in virtue of a special con-
tract, there is sometimes a special obligation to prevent injury
being done to others, and if the obligation be not fulfilled,
there is negative co-operation in the injury inflicted. Apart
from such special office or contract we are bound in charity
to prevent injury to others as far as we can, but not in justice.
This negative co-operation may be committed by concealment
of injustice which has been done, as when a servant conceals
thefts committed against his master's property which has been
entrusted to his care. It may be committed by silence, as
when a policeman accepts hush money to say nothing about
a robbery. It may also be committed if one whose duty it
is to protect another's rights or property neglects that duty
and allows them to be injured. On account of defence of an
unjust act which has already been done there will not arise an
obligation to make restitution, unless such defence was the
cause why restitution was not made for the crime defended.
All approbation and defence of wrongdoing is nevertheless
sinful. One who culpably neglects to prevent his animals
from doing harm to his neighbour is bound to make restitution.
Sometimes these negative co-operators are excused from
performing their strict duty on account of the very serious
inconvenience to which it would subject them, and which they
are not presumed to have obliged themselves to undergo.
In such cases they will be excused from making restitution
for injuries which they did not prevent.
CHAPTER V
THE CIRCUMSTANCES OF RESTITUTION
IN this chapter we will treat of certain questions concerning
the circumstances of restitution, as, to whom restitution is to
be made, how much, in what order, in what manner, at what
time and place.
SECTION I
To whom Restitution is to be Made
1. Restitution is compensation for an injury inflicted, and
so in general it must be made to him who suffered the injury.
This will in general be the lawful possessor of the property
taken or damaged, to whom, therefore, restitution must be made
if he is known for certain. If the property was taken from
a child, or from a servant who merely held it for his master,
it may be restored to the father of the child or to the master.
If it belonged to a corporation, it should be restored to those
who administer its affairs.
2. In case of doubt as to whom the property belongs, diligent
inquiry should be made, and if the doubt cannot be resolved,
the property should be divided among those who are the
probable owners if they are few in number. If they are many
and uncertain, restitution may be made to the poor or to
religious purposes of the place where the injury was com-
mitted, for the true owners may in the circumstances be
presumed to wish that this should be done. If the property
cannot well be devoted to local charitable or religious purposes,
it may be spent elsewhere on such causes. When shopkeepers
and others are bound to restitution for defrauding their
customers, the persons injured are not altogether unknown,
and restitution can best be made by restoring to future cus-
tomers what has been unjustly taken away.
3. If the true owner is altogether unknown and cannot be
discovered, property which has been obtained without injustice
may be retained and treated as property found, in which the
finder has a qualified ownership.
T < 273 *S
274 PRECEPTS OF THE DECALOGUE
If the property was obtained through wrongdoing, it must
be surrendered, the common good requiring that nobody
should benefit by his own theft or fraud. Theologians are
practically agreed on this, and that restitution must be made
to the poor or to religious purposes; but when they inquire
further into the reason for the doctrine they are divided in
opinion. Some maintain that it is grounded on the positive
law of the Church which expressly provided that what has
been unjustly obtained by usury or simony must be given
to the poor or to pious causes, and the same decision has been
extended to similar cases. On this ground they explain the
action of the Church, which sometimes grants compositions
for just cause to debtors whose creditors are uncertain. Other
theologians with greater probability teach that the doctrine
rests on natural law, which the Popes interpreted and applied
to gains made by usury and simony. For natural law requires
that nobody should benefit by his own wrongdoing, so that
restitution must always he made of ill-gotten goods. If resti-
tution cannot be made to the individual owners, partly by
interpreting their personal wish, partly because if the property
is usefully expended on the poor in their behalf they will
benefit spiritually by it, partly because inasmuch as the com-
munity is wronged by theft, restitution must be made to the
community, and this is done by choosing the poor or religious
objects ; the obligation is satisfied by restoring to these.
SECTION II
How Much is to be Restored
1. We have already seen what must be restored in the case
of one who is in possession of another's property, or in case
of unjust damnification to another. In general, the damage
inflicted is the measure of the restitution to be made, for
justice requires that the owner should have back his own.
When there were several who co-operated in injustice a
special difficulty arises as to whether each and all are jointly
or severally bound to make restitution. If two thieves assist
each other to break into and rob a house, what are the
obligations of each of them with respect to the restitution to
be made ?
2. In such cases as this each must, of course, make restitution
for the harm which he personally and immediately caused.
If each one takes his share and makes reparation for that
THE CIRCUMSTANCES OF RESTITUTION 275
portion of the injustice which he committed, the whole damage
will be repaired. But sometimes some of the partners of
injustice are unable or unwilling to make restitution for
their share in the unjust act ; the question then arises
whether the rest are bound to make good the whole damage
inflicted.
Each and all will jointly and severally be bound to make
reparation for the whole damage, or in solidum, as divines say,
when each and all were jointly and severally the efficacious
moral or physical cause of the whole damage; for we are
bound to make reparation for the damage which we have
caused, and for that alone. This will be the case under the
following circumstances :
(a) When the action of each and all is the necessary and
sufficient cause of the whole damage. This condition is
fulfilled when one commands or counsels an unjust act and
another in consequence performs it.
(b) When the action of each is sufficient to cause the damage,
and it has an actual effect in producing it, though the effect
would have been produced without it. Thus if two men
inflict fatal wounds on another, each is responsible for his
death and all losses necessarily connected with it. In
the same way, when several conspire together to commit
an injury, and mutually encourage and assist each other
to inflict it, all are bound jointly and severally to make
restitution.
(c) When the action of each is necessary for the production
of the effect, so that it could not be produced without it,
though the action of each would not be sufficient by itself,
all are bound jointly and severally to repair the injury. Thus
if two thieves carry off a safe which they could not carry
alone, each in the other's default must make good the whole
damage.
When several acting together, but without mutual con-
spiracy in the strict sense, inflict injury on another, divines are
not agreed as to whether each and all are bound to make
reparation for the whole damage. Each is certainly bound
to repair the damage due to his personal action, but probably
be may be excused from restoring more than is equivalent to
the damage which he actually caused. Thus, though those
responsible for an unjust war are bound to make compensa-
tion for all the unjust damage which it causes, yet the private
soldiers are only bound to make restitution for the damage
which they personally cause. In the same way, if a crowd
276 PRECEPTS OF THE DECALOGUE
damage the property of an obnoxious political opponent,
individuals who formed the crowd will only be obliged to make
good the damage which they severally caused. Similarly, if
injustice be done by picketing in a strike, the leaders will be
bound to make reparation for all the injuries inflicted ; the men
who take part in it may be excused if they contribute their quota.
SECTION III
Order of Making Restitution
1. When several have co-operated in some act of injustice
for which they are bound to make restitution there may be
question as to who is primarily bound, and whether the others
are excused if he repairs the damage. The answer to such
questions will be clear from what follows.
When those who co-operated in injustice are only bound
to restore ratably, no order need be observed among them.
Each must fulfil his obligation independently of the others
and restore his share. Even if they are bound jointly and
severally to make restitution, but all co-operated in the unjust
act in the same way as, e.g., by conspiracy and mutual help
the question of order will not arise. Each and all are bound
to restore their quota, and in default of any, the rest are equally
bound to indemnify the injured person. If this has been done,
those who indemnified the injured party will have a claim
against the defaulters.
2. If, however, those who are guilty of an injustice in com-
mon co-operated in it in different ways and degrees, so that,
for example, one gave the command, others executed it, and
others who were bound to prevent it neglected to do so, then
it is plain that all are not equally primary causes of the in-
justice, nor are all equally bound to make restitution. In such
cases the co-operators are bound to make restitution in the
following order : (a) If anyone has the property of the injured
person he must restore it, for res clamat domino, (b) One
who co-operates by command is the principal cause of the
injury ; the rest merely act in his name and for his advantage,
so that he is primarily bound to make good the damage done.
(c) Thirdly, those who inflicted the damage will be bound to
make it good, (d) Then others who co-operated positively
by advice, consent, or flattery, will be bound, (e) Finally,
those who co-operated negatively.
THE CIRCUMSTANCES OF RESTITUTION 277
If the primary causes of the injustice make restitution,
the rest will be free, whereas if the secondary causes who
merely acted for others restore to the injured party, the
primary causes will thereafter be bound to make restitution
to them.
3. The question of order of payment among creditors also
arises when a debtor is insolvent and cannot pay all in full,
for if he can pay all in full, order of payment is not of con-
sequence. If a man cannot pay his debts as they become
due, he will be adjudicated a bankrupt, and his property will
in general be divided ratably among his creditors. Some
debts, however, have priority according to English law, and
must be paid in full if the assets are sufficient for the purpose ;
otherwise they will abate equally among themselves. " These
are (i) Rates and taxes. ... (2) ;The wages or salary of any
clerk or servant, not exceeding ,50, in respect of services
rendered during four months prior to the receiving order.
(3) Wages of any labourer or workman, not exceeding 25,
for services, whether time or piece work, rendered during two
months prior to the date of the receiving order." 1
" A secured creditor has four courses open to him: (i) He
may rest on his security and not prove. (2) He may realize
his security and prove for the deficiency. (3) He may value
his security and prove for the deficiency, after deduction of
the assessed value. (4) He may surrender his security and
prove for the whole debt." 2
The debts of a person lately deceased must be paid by the
executor or administrator in the following order: " First, the
funeral expenses ; next, the expenses of probate or taking out
administration, including the costs of an administration action
and other executorship expenses ; and then the debts of the
deceased are payable out of legal assets in the following order :
(a) Crown debts due by matter of record, a surety to the
Crown having the like priority; (b) debts having priority by
statute e.g., under the Friendly Societies Act, 1896, sec. 35;
(c) debts of record consisting of judgements in courts of
record and recognizances; (d) debts by specialty and simple
contract." 3
If, however, the deceased died insolvent, on the petition of
one or more of his creditors, whose debt would have been
sufficient to support a bankruptcy petition against him if he
1 Encyclopedia of Laws y s.v. Bankruptcy.
2 Ibid.
3 Ibid., s.v. Executors and Administrators.
278 PRECEPTS OF THE DECALOGUE
had been alive, his property will be administered as in bank-
ruptcy according to English law.
If a debtor makes a payment of money or a delivery of
property to a creditor not in the ordinary way of business and
without any pressure or demand on the part of the creditor,
knowing that his circumstances are such that bankruptcy will
be the probable result, he is guilty of a fraudulent preference
in English law. Such fraudulent preference is void against
the trustee in bankruptcy, if made within three months before
the bankruptcy petition is presented. There is a similar
provision in American bankruptcy law, but the period is four
months instead of three.
Those who are on the verge of bankruptcy should not, of
course, give such preferences to any of their creditors merely
with the intention of favouring them at the expense of other
creditors. If they cannot pay their debts in full, the claims
of justice are the same for all, and all creditors should share
alike. If such a preference has been given, the property
must, of course, be surrendered to the official receiver or trustee
on his demand. But supposing that he does not come to the
knowledge of it, and makes no demand for it, is the preferred
creditor bound to surrender the property of his own accord ?
There would seem to be no obligation in conscience to do so.
He has only received payment of what was due to him, as we
suppose; he might have demanded payment, and then the
insolvent debtor might lawfully have paid it. No valid reason
can be urged to show that in accepting full payment of his
debt before the debtor's bankruptcy the preferred creditor
commits an act of injustice against the other creditors. If he
does not commit an act of injustice against them, he is not
bound to make restitution to them. At least, this opinion
would seem not to be destitute of all probability in its favour.
SECTION IV
The Manner of Making Restitution
i. In the internal forum of conscience it is sufficient to
indemnify the injured person for the injury which he has
suffered, and in whatever way this is done conscience will be
satisfied. Restitution, then, may be made by one's self or
through another, with or without the knowledge of the injured
party, under the guise of a gift, or by extra work in the case
THE CIRCUMSTANCES OF RESTITUTION 279
of a servant, or greater diligence than is otherwise of strict
obligation. If the form of a gift or present is chosen, and the
donee makes a present in return, this may not be accepted if
the principal motive for making it was to make a return for
the present received, otherwise it may be retained when the
receiving of the present was rather the occasion than the cause
of the return being made.
2. In English law payment through the post is not a valid
discharge of a debt unless the creditor expressly or by implica-
tion designated that method of payment. However, in con-
science, it would seem that a possessor in good faith of another's
property is released from all further obligation if he choose
means for making restitution which are ordinarily safe and
secure. He is only bound to use ordinary care and diligence
in restoring the property, nor is he b.ound to do this at his own
expense.
According to the common opinion of theologians, one who
possesses another's property in bad faith must see that the
property is again put into the possession of its true owner, so
that if he send it by post and it is lost, he is still bound to make
restitution, unless the means chosen were expressly designated
by the owner. However, there is a good opinion which
excuses even the possessor in bad faith from further obligation
if he took ordinarily secure means to restore the property to
its rightful owner. The creditor may be presumed to consent
that such means as the post or the confessor should be chosen
for making restitution, and if the property is lost, peril domino.
The possessor of another man's property in bad faith must
restore it to the owner at his own expense. If the individual
property cannot be restored without very great expense,
restitution may be made in money with the presumed consent
of the owner.
SECTION V
The Time and Place of Making Restitution
When an obligation of making restitution arises from con-
tract, the terms of the contract must be observed with regard
to time and place. Otherwise, in general, restitution must be
made as soon as possible, and the unjust possessor of another's
property will be responsible for all loss arising from even
inculpable delay, as far as such loss could be foreseen. He
became responsible for such loss when he took unjust posses-
a8o PRECEPTS OF THE DECALOGUE
sion of his neighbour's property. He must, moreover, at his
own expense, as we have seen, take means to put the owner
in possession of his property again. The possessor of another's
property in good faith must not delay restitution unreasonably,
but he is not responsible for unavoidable delay, nor is he bound
to bear the expenses of making restitution.
CHAPTER VI
CAUSES WHICH EXCUSE FROM RESTITUTION
i. ONE who is per se bound to make restitution may sometimes
be excused from doing so for special reasons, either entirely
or at any rate for a time. It is plain that if the owner does
not expect or wish restitution to be made, although he was
unwilling to be injured, the obligation will cease. A rich
father may be unwilling that his son should take from him
a sum of money without his permission, but after it has been
done he may not care to exact restitution. Similarly, a wealthy
man would be very angry if a neighbour took one of his horses
out of the stable and used it for a day's work ; he might demand
an apology, but he probably would not take any money com-
pensation ;>he does not keep livery stables.
2. Physical or moral incapacity to make restitution will be
a valid excuse as long as it lasts. If a man has no means, or
if he cannot make restitution without reducing himself to
beggary, it will be sufficient if he have the wish and intention
to restore when he is able to do so. Sometimes it may be
possible for one who has stolen a large sum which he cannot
at once repay to lay by a little at a time and thus by degrees
save the amount required. If this can reasonably be done,
it will be of obligation. It would be unreasonable to expect
a man to make restitution when it could not be done without
costing a great deal more than the object restored was worth,
or when restitution of a sum of money would lead to loss of
reputation, position, and future prospects. If in such cases
means exist for making secret restitution, they should of course
be adopted.
When a man becomes bankrupt all his property, with the
exception of the tools of his trade and the necessary wearing
apparel and bedding for himself, wife, and children, to the
value of 20, will vest in the official receiver and trustee.
These officials will also be able to claim for the benefit of the
creditors future acquisitions of property until the bankrupt
has obtained his discharge. The question arises whether after
a bankrupt has obtained an absolute discharge he is still liable
in conscience to pay any residue that remains of his debts,
281
PRECEPTS OF THE DECALOGUE
or whether he is free in conscience as he is in law. There
can scarcely be a doubt that the civil authority can release
a bankrupt from all future liability if it choose to do so.
Especially in trading communities it may be for v the public
good that an honest but unfortunate trader should be able to
begin again, without being weighted with a heavy load of past
debts. If the law releases a bankrupt debtor from all future
liability, the rate of interest will soon accommodate itself to the
circumstance. So that it is merely a question of fact as to
what is the effect of any particular bankruptcy law. In most
countries, as in America, it seems that the law only grants the
bankrupt legal exemption from future molestation on the part
of his creditors ; it does not free him from the moral obligation
to pay his debts in full if ever he becomes able to do so.
In England, on the other hand, by an absolute discharge
" the debt is extinguished," " the bankrupt becomes a clear
man again," in the words of lawyers who discuss the effect of
English bankruptcy law. A composition or scheme of arrange-
ment with one's creditors has the same effect as an absolute
discharge when it has been approved by the Court.
CHAPTER VII
ON OCCULT COMPENSATION
i. WHAT another owes me in justice I have a right to have,
and if he refuses to give it to me, I may compel him by having
recourse to law. Sometimes, however, this means of en-
forcing my rights is uncertain, costly, and accompanied by
great inconvenience. Under certain conditions I shall be safe
in conscience if I covertly take what belongs to me. If I do
this, I only take my own ; I only defend myself from a continual
injustice which was being inflicted on me by one who detained
my property against my reasonable will.
2. Such an act of occult compensation, as theologians call it,
may be allowed in conscience on four conditions :
(a) The debt must be morally certain. If I have only a
probable right, I may have recourse to the law to have the
question decided, but with only a probability on my side I
must not deprive another of what he possesses with a probable
right on his side. In such a case, melior est conditio possi-
dentis.
(b) There must be a difficulty in vindicating my right by
ordinary legal process. For if there be no difficulty, I must
not take the law into my own hands ; public order and peace
require that. Even though from occult compensation there
be no fear of a breach of the peace, yet no man is a safe judge
in his own case.
(c) I must not secretly take what belongs to me when there
is likelihood of being paid after all. By so doing I should
wrong my debtor and be paid twice.
(d) I must take compensation in the same kind of property
as far as possible; the debtor must not be forced to sell or
barter his property against his will. Of these conditions the
first is the most important, but all should be loyally and con-
scientiously observed in those special cases when we may
have recourse to occult compensation.
383
PART VIII
THE EIGHTH COMMANDMENT
THE Eighth Commandment of the Decalogue is, " Thou shalt
not bear false witness against thy neighbour." 1 Primarily it
forbids the giving of false evidence, especially in a court of
justice, against one's neighbour, by which his reputation is
unjustly injured. But because the same effect is produced
by rash judgements, calumny, tale-bearing, backbiting, con-
tumely, lying, and the betrayal of secrets, all these sins are also
forbidden by this commandment. Inasmuch as it is virtually
positive, it prescribes the telling of the truth.
CHAPTER I
ON RASH JUDGEMENTS
i. A JUDGEMENT is a firm assent of the mind to a proposition
without fear of mistake, and if such an assent is given without
sufficient grounds it is a rash judgement. The term, however,
is used here only of judgements without sufficient reasons
against the character of others, as that such a one is wicked,
untrustworthy, a drunkard, and so on.
2. Such rash judgements, when they are formed deliberately
with the consciousness that there is not sufficient ground for
them, are sinful, and if the matter be serious they are gravely
sinful. The reason is because all have a right to our good
esteem unless they have forfeited it by their bad conduct ; in
judging others rashly we arrogate to ourselves an authority
which we do not possess, and we use it unjustly against the
character of our neighbour. 2 We thus violate justice, which
in serious matters binds under grave sin.
3. Rash judgements, however, to which depraved human
nature is so prone, are not usually grave sins in those who
are striving to lead good lives. . Rash and evil doubts, or
suspicions, or opinions about others are frequent, but these,
although wrong, are not as a rule gravely sinful, for they do
not inflict serious harm on our neighbour's reputation.
1 Exod. xx. 16. z Jas. iv 13.
284
ON RASH JUDGEMENTS 285
4. It is no sin to think that another is wicked or has com-
mitted a sin if we know it to be a fact. Nor are we obliged
to think that all men are good until we know something to the
contrary. We may suspend our judgement about such as we
do not know sufficiently well to be able to say whether they
are good or bad. We know, moreover, that there are many
bad people in the world, and prudence suggests that we should
be on our guard against all whom we do not know well, though
justice and charity incline us to think no evil of anyone.
Rash judgements frequently arise from the malice of our
own hearts, or from hatred and envy. 1 If we purify our own
hearts from vice and wickedness, we shall think kindlier
thoughts of others.
1 Rom. ii i.
CHAPTER II
ON DETRACTION
i. DETRACTION, slander, or backbiting is committed by un-
justly depriving another of his good name in his absence. If
this is done by falsely imputing to him something which injures
his reputation it is called calumny. Tale- bearing is a similar
sin, and consists in making mischief between friends by telling
tales to the disadvantage of one of them. All these are sins
against justice and charity, for they tend to deprive our neigh-
bour of his good name, " which is better than great riches,"
and to which he has a strict right until he forfeits it by his
public conduct. Even if what is said to the disadvantage of
our neighbour be true, we have no right to make it known to
his discredit, as long as it is not public, for he still retains his
reputation, he still has a right to it, and he must not be deprived
of it without just cause. Even the dead retain their right to
their good name, for death does not make them non-existent,
and men are prepared to do and suffer much for the sake of
leaving a reputation behind them. Besides, speaking ill of the
dead frequently besmirches the living. Not only individuals
but corporate bodies have each their reputation, and detrac-
tion may be committed against a Religious Order, for example,
or a diocese, as well as against individuals.
2. Inasmuch as detraction is contrary to justice and charity,
which, as we have seen, bind under a grave obligation, it will
of itself be a serious sin, though frequently only venial on
account of levity of matter. The measure of the gravity of
the sin will be the harm which it causes to the person whose
reputation suffers. The making known of the grave but
secret sin of another with malicious intent or to his serious
injury will certainly be a mortal sin. The disclosure of a
venial sin of another, or even of some hidden defect for which
he is not responsible, as, for example, illegitimacy, may cause
him serious damage and constitute a grievous sin. However,
the making known of even a grievous sin of another is not
always mortally sinful, for sometimes no serious harm follows
from it. A notorious drunkard will not be injured appreciably
if a secret sin of drunkenness is made public, nor a woman
286
ON DETRACTION 287
of doubtful reputation if some specific fall is mentioned. On
the other hand, although a man has lost his reputation in one
particular matter, he may still have one to lose in other matters,
and if his secret sins in these matters be made known, a more
or less grievous sin of detraction will be committed. A man
may be of notoriously loose morals but with a character still
to lose for honesty and uprightness.
3. When a man has been tried and condemned in an open
court of justice, there is no wrong done him by publishing
the fact in the newspapers, or telling it to those who would
not otherwise have heard of it. The judicial sentence penalizes
him and deprives him of the right to his reputation in the
matter touched by the sentence. This holds true of distant
places and countries, and even of distant times. No injustice,
then, is committed against one who has been legally convicted
of crime by making this known in a place to which he has
come in the hope of its not being known. Uncharitable harm
might be done against such a one if he was trying to lead a
good life in his new surroundings.
Similarly, the sin of detraction is not committed when a sin
which is matter of common report in one place is made known
in another, if the knowledge of it would be sure to penetrate
there before long. It is a disputed point among theologians
whether or not sin is committed in such a case if otherwise
the knowledge would not penetrate to the place where it is
made known. At any rate, it is advisable to keep silence about
such cases unless there be some good reason for making known
the truth. If someone is thinking of employing an unknown
servant whom we know to have committed theft from her
former mistress in another part of the country, we are justified
in making the fact known to the person concerned. It does
not follow that we are justified in publishing elsewhere the sin
of another which was well known indeed to a particular circle
or community, but which was not really public. In such a
case the right to one's reputation with the outside world has
not been lost.
4. The right to one's reputation is not absolute. We are,
of course, never justified in calumniating another by imputing
false charges to him. But for just and sufficient reasons we
may make known the secret sin of another. There are cases
when this is necessary for the public good or for the protection
of the rights of the innocent, and in a conflict of rights the
stronger should prevail. Thus, when lawfully summoned to
give evidence in a court of justice we may witness to secret
288 PRECEPTS OF THE DECALOGUE
crime, and generally, whenever the defence of ourselves, or
of the innocent, or the good of the delinquent himself, or of
our hearers, require the truth to be made known.
5. If by listening to a detractor we encourage him to slander
another, we are formal co-operators in his sin and are as guilty
as the detractor himself. If our listening is not indeed the
efficacious cause of the detraction, we do not sin against justice,
but we sin against charity if we could prevent the detraction
and do not do so. For charity obliges us, as we saw above,
to correct an erring brother and to prevent harm being done
to our neighbour as far as possible. It is true that private
individuals will seldom be bound by a grave obligation in this
matter; frequently they could not intervene without doing
more harm than good; but those in authority are more fre-
quently and more strictly bound to correct their subjects and
to defend their reputation against slander.
6. Inasmuch as detraction, calumny, and other sins of the
like nature are contrary to justice, they will always leave the
obligation of making restitution as far as possible for the unjust
damage which they cause, as we saw above when treating of
restitution.
CHAPTER III
ON CONTUMELY
i. OUR neighbour has a right not only to his good name but
also to the honour or the external marks of our esteem, befitting
his qualities and position. The Apostle exhorts us to " love
one another with the charity of brotherhood, with honour
preventing one another," 1 and in another place he bids us
render honour to whom honour is due. 2 The sin of con-
tumely is committed by any act or word which is contrary to
the honour which we are bound to show our neighbour. It
may be committed by neglecting to show him the honour
which is his due, or by saying or doing something in his
presence which expresses our contempt of him.
2. Contumely of itself is a grave sin against justice and
charity, for it injures a man in what he values more than
wealth, and as a rule an insult wounds the reputation, as well
as the feelings of him who is insulted. Our Lord's words
show how grievous a sin is committed by treating another with
contumely: " Whosoever shall say to his brother, Raca, shall
be in danger of the council. And whosoever shall say, Thou
fool, shall be in danger of hell fire." 3 Like most sins against
justice and charity, contumely may be only a venial sin, for
levity of matter, and chaff or banter, which is not intended
to wound or irritate another, is of course harmless provided
that it keeps within due bounds.
3. Inasmuch as contumely violates justice, proper satis-
faction must be made for insults. The kind and manner of
making satisfaction will depend much on the relative condition
of the parties. Sometimes the person injured may be reason-
ably presumed not to wish the memory of the insult to be
revived by formal apologies, and the danger of again arousing
bitter and angry feelings may also excuse one from open acts
of satisfaction.
1 Rom. xii 10. a Rom. xiii 7. 3 Matt, v 22.
i.
289 19
CHAPTER IV
ON LYING
i. A LIE is defined by St Thomas to be a speech contrary to
one's mind. 1 It is, then, of the essence of a lie that there
should be an intention of saying what is false, that there
should be a contradiction between the mind and the external
expression of it. One may tell a lie, then, by saying what is
true if it is believed by the speaker not to be true, and a lie
is told by denying what is false if it is believed to be true.
Although a liar usually has the intention of deceiving others,
yet such an intention is not of the essence of a lie. A man
may be well aware that he has no chance of being able to
deceive another, but may say what he knows to be untrue in
order to excuse himself or not to stand self- convicted. Men
who are known to lie habitually do not expect others to be
deceived by what they say, but still they lie when they say
what is not true. One may lie to God, though he knows that
he cannot deceive him.
In saying that a lie is a speech contrary to one's mind we
understand not only words but gestures, or any signs by which
our thought is manifested to others. As St Augustine says :
" He tells a lie who has one thing in his mind and says some-
thing else by word or by any signs whatever." 2 For we may
and do constantly speak not only by word of mouth, but by
our tone, looks, gesture, actions, and by the very circumstances
in which our words are uttered. The words " I am not
guilty " in the mouth of a murderer have quite a different
meaning when they are uttered in the dock and at the feet of
his confessor. The words, the tone, the look may be the
same ; the circumstances make it a true speech in the first case
and a sacrilegious lie in the second.
A lie in action is called hypocrisy or simulation, but the
malice is the same as in lying words.
Lies are divided by theologians into jocose, officious, and
hurtful lies.
A jocose lie is told to amuse others ; it is something said in
joke which the speaker knows to be false, and uttered with
- 1 Summa, 2-2, q. 110, a. i. 2 DeMendacio, c. 3*
390
ON LYING 291
the intention of saying what he knows to be false. If what is
not true is said in joke without any intention of lying, and
in such a way that ordinary hearers would understand, there
is no lie. To speak ironically is not to lie.
An officious lie is a lie of excuse, or a falsehood which, while
procuring some advantage, does nobody any harm.
A hurtful lie does an injury to someone.
2. According to the common Catholic teaching, lying of
every kind is intrinsically wrong ; so that, inasmuch as we may
not do evil that good may come of it, we are never justified
in telling a lie, not even if the life of another or the safety of
the world depended on it. St Augustine, St Thomas, and
other Catholic Doctors and theologians gather this doctrine
from the teaching of Holy Scripture which in many places
seems to forbid all lying as absolutely as it forbids theft or
homicide. 1 Pope Innocent III gives expression to this teaching
when he says in the Decretals, " Since Holy Scripture prohibits
lying even to save the life of another." 2 Reason teaches us
the same doctrine. For a lie is something inordinate in itself.
It is a perversion of the moral order which the law of nature
prescribes should be observed between the mind and the
expression of it in our intercourse with others. We are
endowed with the faculty of making known our thoughts and
feelings to others; right order requires that the external ex-
pression should agree with the internal thought, that the
machinery should be correctly regulated, that there should
be no contradiction between the parts of the same agent, as
there is when a lie is told. The moral turpitude which there
is in such a contradiction between the mind and its external
expression is well seen in the vice of hypocrisy. When a man
pretends to be other than he is, there is the same perversion
of right order that there is in lying. It is like a monstrosity
in nature; the parts of one whole do not fit harmoniously
together ; they are out of gear and offensive to the view.
There is, then, a special virtue of veracity which prescribes
that when we have to make known our thoughts and feelings
we should do it truthfully, or, in other words, we should make
the outward expression agree with the thought. This virtue
of veracity exists and is of obligation apart from any right to
the truth that there may be in others. Veracity is something
which we owe to ourselves as well as to our neighbour. It is
true indeed that society is very much interested in sincerity
and veracity. Social intercourse is very much hindered by
1 Col. iii 9; Eph. iv 35. z C. Super eo, De usuris.
zgz PRECEPTS OF THE DECALOGUE
lying and the mistrust which lying generates. But although
this is true, yet lying must be avoided primarily because it is
unworthy of the dignity of man; it is a perversion of right
order ; it is intrinsically, in itself, wrong.
Some of the Greek Fathers held a different view from the
above, and thought that lying was not wrong under all circum-
stances, but that it was occasionally allowable, like medicine,
on account of inevitable necessity. English moralists have
very commonly held a similar opinion, that a lie is only told
when what is false is said to one who has a right to the truth.
Some modern Catholic theologians have also adopted this
opinion, which places the malice of lying in the denial of the
truth to one who has a right to it. They do not, however,
sufficiently explain the nature of that right, whether it is a
strict right of justice, or a right in a vague sense demanded by
the good of society, and so due out of legal justice, or charity,
or piety, or obedience. Moreover, it is as difficult to determine
when that right exists as it is to determine what is a lie accord-
ing to the common opinion, and the door seems to be opened
to promiscuous lying provided that no injury be done to our
neighbour. The only lie which the theory acknowledges seems
to be the hurtful He. Nor does it sufficiently answer the argu-
ments on which the common opinion is based.
3. If it is never lawful to tell a lie, if the lie of necessity
cannot be allowed, what means have we of safeguarding a
secret ?
Catholic theologians answer this question by propounding
their doctrine of mental reservation. Mental reservations are
either strictly or widely so called. The former is the restric-
tion of one's meaning in making an assertion to the proposition
as modified by some addition made to it within the mind of
the speaker. As if on being asked " Are you going to town ?"
one were to answer " Yes," meaning " in imagination." In
wide mental reservations the words used are capable of being
understood in different senses, either because they are am-
biguous in themselves, or because they have a special sense
derived from the circumstances of time, place, of person in
which they are spoken. Thus, when a servant says that her
master is not in, the words may mean either that he is absent,
or that he does not wish to see the visitor. The servant's real
meaning is restricted to one of these senses. In the same
way a defendant on his trial in an English court of justice
pleads not guilty i.e., until the charge be proved. A lawyer
or a doctor questioned about professional secrets replies, " I
ON LYING 393
don't know " i.e., I have no knowledge which I can com-
municate.
Although strict mental reservations are lies, and therefore
sinful, yet wide mental reservations are in common use; they
are necessary, and they are not lies. They are necessary
because justice and charity require that secrets should be kept,
and frequently there is no other way of keeping them. They
are not lies because, as we saw above, words take their meaning
not only from their grammatical signification, but from the
circumstances in which they are used. When a priest is
asked about a sin which a penitent has confessed to him, and
he answers, " I never heard of it," he speaks as a man, not
as a confessor who holds the place of God in the tribunal of
Penance. All are aware that he is a priest, and to all his words
mean, " I never heard of it outside of the confessional." He
never speaks of what he has heard inside the confessional, and
nothing can, or should, be gathered about what he has heard
there from the words which he uses. Although these wide
mental reservations are not lies, yet they must not be employed
without just cause, for the good of society requires that we
should speak our mind with frankness and sincerity in the
sense in which we are understood by our hearers, unless there
be a good reason for permitting their self-deception when they
take our words in a sense that we do not mean.
Truth requires not only that we should say nothing that
we know to be false, but also that we should weigh our state-
ments and not make rash and unconsidered assertions. There
are some people whose talk runs babbling along like a stream
in a fresh, and with as little meaning. A man with a love for
truth will be more sparing of his words, and will weigh them
before giving them currency.
CHAPTER V
ON SECRETS
i. A SECRET is some hidden matter concerning another which
cannot be made known without causing him injury or dis-
pleasure. Besides the secret of the seal of confession, which
is treated of elsewhere, divines distinguish three kinds of
secret : the natural secret, the promised secret, and the secret
which is communicated under an express or implied contract
of secrecy.
When we come to the knowledge of something concerning
another which cannot be made known without causing him
injury or displeasure we are under the obligation of a natural
secret not to make it known. This obligation arises from
charity and justice, inasmuch as these virtues forbid us to do
anything to the hurt or annoyance of our neighbour.
If we come to know something concerning our neighbour
and then give a promise not to reveal it to others, we are
bound by a promised secret. If the matter was of its nature
secret, there would be the obligation of a natural secret inde-
pendently of the promise. When the promise is given, a
special obligation arising therefrom binds the party to secrecy.
In case the matter was not of itself secret, the only obligation
would be that arising from the promise. It depends to some
extent on the intention of the promisor as to what obligation
he takes upon himself by his promise. He may intend to
bind himself to keep his word by the virtue of fidelity, because
it is the duty of an honest man to keep his promise. In this
case, as fidelity only binds under pain of venial sin, there will
only be this obligation to observe the promised secret. How-
ever, if the other party to whom secrecy was promised would
suffer serious loss from the violation of the secret, or if the
parties were bound by mutual promises, then justice would
require the secret to be kept, and the violation of the obligation
would of itself be gravely sinful. Apart even from these
circumstances, the promisor may intend to give the other a
right to secrecy in justice, and then he will be bound to observe
it under pain of mortal sin.
A secret which is confided to another under the condition
394
ON SECRETS
that secrecy is to be observed constitutes the matter of an
onerous contract and binds more strictly than either a natural
or a promised secret. Such are secrets of office which officials
of all sorts become aware of in the execution of the duties
entrusted to them; professional secrets of doctors, lawyers,
priests, and others, who are consulted as experts by people
in doubt or difficulty ; as well as all others which are entrusted
to any person under the express or implied condition of
secrecy.
2. The obligation to observe a natural secret will cease after
the secret has become public property. The party whose
secret it is may sometimes be reasonably presumed not to be
unwilling that the matter should be communicated to another,
as, for example, to somebody who can and who will be of
assistance to him. If the public good requires that the secret
should be made known in order to prevent public wrong,
the obligation of secrecy will cease, for the public welfare is
of greater importance than that of an individual. If serious
harm threatens one's self or some other innocent person, or
the party whose secret is in question, and the harm can only
be averted by making known the secret, this will be allowed
in the case of natural or promised secrets. The right of
defence from impending evil prevails over that of natural and
promised secrets.
Even the obligation of the third class of secrets will cease
when they cannot be observed without serious harm to the
public weal. The natural law, however, which requires that
people should be able to consult others in their difficulties in
all security, demands that this class of secret should be observed
in the case when even serious harm threatens some innocent
person, unless he whose secret is in question is the cause of
the impending evil. Thus, if I know as a professional secret
who is the real culprit in the case of a crime wrongly imputed
to an innocent person, I may disclose the real culprit if by
some special means he caused the false accusation of the
innocent person, otherwise I must keep the secret. It is a
disputed point among theologians whether I am bound to
observe a secret at the peril of my life when it was entrusted
to me under that express condition, some maintaining that
no one can pledge his life in that way, others more probably
holding the contrary. Whether or not I am bound at my own
serious loss to keep a secret entrusted to me under the con-
dition of secrecy depends to some extent on circumstances.
Sometimes I cannot be supposed under the circumstances to
292 PRECEPTS OF THE DECALOGUE
lying and the mistrust which lying generates. But although
this is true, yet lying must be avoided primarily because it is
unworthy of the dignity of man; it is a perversion of right
order ; it is intrinsically, in itself, wrong.
Some of the Greek Fathers held a different view from the
above, and thought that lying was not wrong under all circum-
stances, but that it was occasionally allowable, like medicine,
on account of inevitable necessity. English moralists have
very commonly held a similar opinion, that a lie is only told
when what is false is said to one who has a right to the truth.
Some modern Catholic theologians have also adopted this
opinion, which places the malice of lying in the denial of the
truth to one who has a right to it. They do not, however,
sufficiently explain the nature of that right, whether it is a
strict right of justice, or a right in a vague sense demanded by
the good of society, and so due out of legal justice, or charity,
or piety, or obedience. Moreover, it is as difficult to determine
when that right exists as it is to determine what is a lie accord-
ing to the common opinion, and the door seems to be opened
to promiscuous lying provided that no injury be done to our
neighbour. The only lie which the theory acknowledges seems
to be the hurtful lie. Nor does it sufficiently answer the argu-
ments on which the common opinion is based.
3. If it is never lawful to tell a lie, if the lie of necessity
cannot be allowed, what means have we of safeguarding a
secret ?
Catholic theologians answer this question by propounding
their doctrine of mental reservation. Mental reservations are
either strictly or widely so called. The former is the restric-
tion of one's meaning in making an assertion to the proposition
as modified by some addition made to it within the mind of
the speaker. As if on being asked " Are you going to town ?"
one were to answer " Yes," meaning " in imagination." In
wide mental reservations the words used are capable of being
understood in different senses, either because they are am-
biguous in themselves, or because they have a special sense
derived from the circumstances of time, place, or person in
which they are spoken. Thus, when a servant says that her
master is not in, the words may mean either that he is absent,
or that he does not wish to see the visitor. The servant's real
meaning is restricted to one of these senses. In the same
way a defendant on his trial in an English court of justice
pleads not guilty i.e., until the charge be proved. A lawyer
or a doctor questioned about professional secrets replies, " I
ON LYING 293
don't know " i.e., I have no knowledge which I can com-
municate.
Although strict mental reservations are lies, and therefore
sinful, yet wide mental reservations are in common use ; they
are necessary, and they are not lies. They are necessary
because justice and charity require that secrets should be kept,
and frequently there is no other way of keeping them. They
are not lies because, as we saw above, words take their meaning
not only from their grammatical signification, but from the
circumstances in which they are used. When a priest is
asked about a sin which a penitent has confessed to him, and
he answers, " I never heard of it," he speaks as a man, not
as a confessor who holds the place of God in the tribunal of
Penance. All are aware that he is a priest, and to all his words
mean, " I never heard of it outside of the confessional." He
never speaks of what he has heard inside the confessional, and
nothing can, or should, be gathered about what he has heard
there from the words which he uses. Although these wide
mental reservations are not lies, yet they must not be employed
without just cause, for the good of society requires that we
should speak our mind with frankness and sincerity in the
sense in which we are understood by our hearers, unless there
be a good reason for permitting their self-deception when they
take our words in a sense that we do not mean.
Truth requires not only that we should say nothing that
we know to be false, but also that we should weigh our state-
ments and not make rash and unconsidered assertions. There
are some people whose talk runs babbling along like a stream
in a fresh, and with as little meaning. A man with a love for
truth will be more sparing of his words, and will weigh them
before giving them currency.
CHAPTER V
ON SECRETS
i. A SECRET is some hidden matter concerning another which
cannot be made known without causing him injury or dis-
pleasure. Besides the secret of the seal of confession, which
is treated of elsewhere, divines distinguish three kinds of
secret : the natural secret, the promised secret, and the secret
which is communicated under an express or implied contract
of secrecy.
When we come to the knowledge of something concerning
another which cannot be made known without causing him
injury or displeasure we are under the obligation of a natural
secret not to make it known. This obligation arises from
charity and justice, inasmuch as these virtues forbid us to do
anything to the hurt or annoyance of our neighbour.
If we come to know something concerning our neighbour
and then give a promise not to reveal it to others, we are
bound by a promised secret. If the matter was of its nature
secret, there would be the obligation of a natural secret inde-
pendently of the promise. When the promise is given, a
special obligation arising therefrom binds the party to secrecy.
In case the matter was not of itself secret, the only obligation
would be that arising from the promise. It depends to some
extent on the intention of the promisor as to what obligation
he takes upon himself by his promise. He may intend to
bind himself to keep his word by the virtue of fidelity, because
it is the duty of an honest man to keep his promise. In this
case, as fidelity only binds under pain of venial sin, there will
only be this obligation to observe the promised secret. How-
ever, if the other party to whom secrecy was promised would
suffer serious loss from the violation of the secret, or if the
parties were bound by mutual promises, then justice would
require the secret to be kept, and the violation of the obligation
would of itself be gravely sinful. Apart even from these
circumstances, the promisor may intend to give the other a
right to secrecy in justice, and then he will be bound to observe
it under pain of mortal sin.
A secret which is confided to another under the condition
394
ON SECRETS
that secrecy is to be observed constitutes the matter of an
onerous contract and binds more strictly than either a natural
or a promised secret. Such are secrets of office which officials
of all sorts become aware of in the execution of the duties
entrusted to them; professional secrets of doctors, lawyers,
priests, and others, who are consulted as experts by people
in doubt or difficulty ; as well as all others which are entrusted
to any person under the express or implied condition of
secrecy.
2. The obligation to observe a natural secret will cease after
the secret has become public property. The party whose
secret it is may sometimes be reasonably presumed not to be
unwilling that the matter should be communicated to another,
as, for example, to somebody who can and who will be of
assistance to him. If the public good requires that the secret
should be made known in order to prevent public wrong,
the obligation of secrecy will cease, for the public welfare is
of greater importance than that of an individual. If serious
harm threatens one's self or some other innocent person, or
the party whose secret is in question, and the harm can only
be averted by making known the secret, this will be allowed
in the case of natural or promised secrets. The right of
defence from impending evil prevails over that of natural and
promised secrets.
Even the obligation of the third class of secrets will cease
when they cannot be observed without serious harm to the
public weal. The natural law, however, which requires that
people should be able to consult others in their difficulties in
all security, demands that this class of secret should be observed
in the case when even serious harm threatens some innocent
person, unless he whose secret is in question is the cause of
the impending evil. Thus, if I know as a professional secret
who is the real culprit in the case of a crime wrongly imputed
to an innocent person, I may disclose the real culprit if by
some special means he caused the false accusation of the
innocent person, otherwise I must keep the secret. It is a
disputed point among theologians whether I am bound to
observe a secret at the peril of my life when it was entrusted
to me under that express condition, some maintaining that
no one can pledge his life in that way, others more probably
holding the contrary. Whether or not I am bound at my own
serious loss to keep a secret entrusted to me under the con-
dition of secrecy depends to some extent on circumstances.
Sometimes I cannot be supposed under the circumstances to
296 PRECEPTS OF THE DECALOGUE
have bound myself by so strict an obligation; but as a rule
professional secrets will continue to be binding even when
the observance of them entails serious loss.
3. We are bound to make known natural and promised
secrets at the command of lawful superiors. The obligation
of obedience to lawful authority prevails over that of secrecy
due to individuals in those cases. And so a witness in a court
of justice when lawfully questioned about what he knows
under the obligation of natural or promised secrecy must give
the evidence required. Similarly, secret impediments to
marriage must be declared according to the precept contained
in the proclamation of banns. Professional secrets, however,
and, in general, secrets which belong to the third class, are
privileged, and must not be declared, unless they have ceased
to be binding for some such reason as those mentioned above.
Secrecy in this case is demanded by the natural law, which
gives the fullest possible security to those who consult others
in their difficulties, and even the precept of one's superior
cannot avail against the natural law, as St Thomas teaches. 1
English law acknowledges the privilege of state secrets and
of the professional secrets of lawyers, but in the case of doctors
and clergymen it does not as yet go the full length of the
doctrine laid down above.
4. The doctrine with regard to secrets is applicable to the
opening and reading of letters, unless it is known that they
contain no secrets and the writer is not aggrieved. It is, how-
ever, a general rule of Religious Orders that letters written by
and to religious may be opened by the superior, except such
as contain matters of conscience, and communications between
higher superiors and their subjects.
1 Summa, 2-2, q. 70, a. i, ad 2.
BOOK VII
ON CONTRACTS
PART I
ON CONTRACTS IN GENERAL
CHAPTER I
THE NATURE OF CONTRACT
i . RIGHTS may be acquired by one person from another when
the latter voluntarily surrenders them in favour of him by
whom they are freely accepted. This is done by contract,
which may be defined as an agreement by which one or more
persons bind themselves to do, give, or forbear something in
favour of one or more other persons.
Contracts are express or implied. Express contracts are
entered into by word of mouth or by writing. Implied con-
tracts are formed by the virtual or implied consent of the
parties. Thus, whenever a person undertakes an office he
virtually agrees to perform all the duties annexed to it by law
or custom, or which the nature of it demands. These latter
are also called quasi- contracts.
By a unilateral contract one only of the parties becomes
subject to an obligation, as by a simple promise to do some-
thing in favour of another. A bilateral contract, such as that
of sale, imposes an obligation on both parties.
A gratuitous contract confers advantage on one of the
parties only, though both may incur an obligation by it. An
onerous contract confers advantage on both parties. Thus,
if I lend my horse to a neighbour for the day, he alone derives
advantage from the contract, though I am bound not to demand
the horse back until the appointed time arrives. If the contract
is one of hiring, both parties derive advantage from it, and
both are laid under obligations by it.
A consensual contract is formed by the mere consent of the
parties, a real contract by the delivery of the object of the
agreement.
A solemn or formal contract is entered into with the formali-
297
298 ON CONTRACTS
ties required by law. A simple contract has no such formalities.
In English law some simple contracts give no right of action
unless they are in writing, or unless they have some other
adjunct which serves as evidence of the contract. Thus by
the Sale of Goods Act, 1893, sec. 4, " a contract for the sale of
any goods of the value of ten pounds or upwards shall not be
enforceable by action unless the buyer shall accept part of the
goods so sold, and actually receive the same, or give something
in earnest to bind the contract, or in part payment, or unless
some note or memorandum in writing of the contract be made
and signed by the party to be charged or his agent in that
behalf." In these cases the law does not annul the contract
if it is destitute of the legal requirements, or make it voidable ;
it only renders it unenforceable in the courts of law. The
only formal or specialty contract in English law is the deed.
A deed is a document in writing or printed on paper or parch-
ment. It is executed or made conclusive between the parties
by being signed, sealed, and delivered. The seal is often
affixed to the deed beforehand, and this is executed and made
operative by the party whose deed it is placing his finger on
the seal and saying, " I deliver this as my act and deed." 1
2. In moral theology we have chiefly in view the natural
obligation in conscience. which arises from every true contract
to act in accordance with the agreement entered into. That
obligation is one of justice, for a contract gives a strict right
in justice to the fulfilment of the agreement. We cannot,
however, afford to neglect positive law, ecclesiastical and civil,
especially in the matter of contracts. It is a received axiom
that contracts are governed by the law of the country. So
that a question for consideration arises here, whether positive
laws, which require certain contracts to have a special form
for their validity, bind the conscience, so that if they are
informal they are null and void in conscience as they are
in law.
No difficulty exists with regard to contracts which are
governed by ecclesiastical law. The effect of the Tridentine
law, which makes marriage null and void if not contracted in
presence of the parish priest and of two witnesses, is clear
from its terms. The same is true of other ecclesiastical laws
which annul contracts. A difficulty arises only with regard
to civil law, which does not usually explain whether defect of
form in specialty contracts merely affects the legal obligation,
or whether it affects also the natural obligation, making the
1 Anson, Law of Contract, p. 51.
THE NATURE OF CONTRACT 299
contract null and void in conscience, so that no rights or
obligations of any kind arise under it.
The civil authority can certainly make laws which would
have that effect in its own department, as all admit. It is a
question of fact as to what is the effect of such voiding laws in
any particular system of jurisprudence. It is a well-established
opinion among English moralists that English laws which
make acts void for want of legal form do not absolutely and
at once annul the act, but only make it voidable. 1 So that
defect of form in deeds and testaments will not prevent them
from taking effect according to the intention of him who made
them. If, however, it be the interest of someone to have the
informal act set aside, he may use the benefit which the law
gives and set it aside, provided that there is no fraud. Modern
theologians commonly hold this opinion concerning the effect
of voiding laws in other modern systems of legislation.
3. From the definition of contract it is clear that its essential
elements are: (i) The consent of the parties; (2) parties who
are capable of giving a valid consent; (3) the subject-matter
of the agreement. These will form the subject of the three
following chapters.
The law of the country concerning contracts is canonized
by Canon 1529, which is as follows : " Let the same be observed
in canon law in ecclesiastical matters with the same effects
which the civil law in the country lays down concerning con-
tracts both in general and in particular, whether nominate or
innominate, and about payments, unless it is contrary to divine
law, or it is otherwise determined by canon law."
1 Jeremy Taylor, Ductor dubit., bk. 2, c. i, r. 5, n. 22.
CHAPTER II
ON CONSENT
i . THE consent of the parties is the efficient and formal cause
of a contract. When the two wills meet together and agree on
the matter of the contract, the contract is formed. In order
to produce its effect this consent must have certain qualities;
it must be deliberate and free, mutual, internal as well as
external.
It must be deliberate, for a contract imposes a perfect and
serious obligation on the parties, an obligation which they
voluntarily take upon themselves, and which is not imposed
from without. Now such an obligation cannot arise from a
semi- deliberate act; full and perfect deliberation is required
to give rise to a full and perfect obligation which is voluntarily
undertaken.
It must be free, not unjustly forced ; for an obligation which
binds in justice cannot arise from injustice.
It must be mutual, for a contract is the agreement of two
wills. It is not necessary that consent be given at the same
time by both parties. Provided that one of them has con-
sented previously and his consent still endures, the contract
will be formed when the other party gives his consent, for
then there will be the agreement of the two wills.
It must be internal, for a contract is an agreement of wills ;
one renounces a right in favour of the other who accepts it,
and this requires an internal act of the will. If the internal
act be wanting, we may have a seeming contract, a contract
in appearance, a fictitious but not a real contract. Inasmuch
as a fictitious contract is no contract at all, it cannot as a
contract bind the conscience, and so one who enters into a
contract without intending to bind himself is not bound by
it. He is, however, guilty of deception and fraud, and on
this ground he is bound to indemnify the other party for any
damage that he has caused him by his sinful and unjust action ;
and if the only means of doing this is for him to fulfil the
terms of the contract, he will be bound in justice to do that.
When a contract is entered into without the intention of ful-
filling its obligations, there is no contradiction here as in the
300
ON CONSENT 301
former case; the contract exists, and its obligations must be
faithfully executed.
Internal consent is not sufficient of itself to form a contract ;
it must also be outwardly manifested to the other party in order
that he may know that his offer has been accepted and that
there is mutual agreement. In other words, the consent must
be external as well as internal. This internal and external
agreement of the parties to a contract is brought about by an
offer being made by one of them and accepted by the other.
As soon as acceptance is externally manifested, all the requisites
for a contract are present, and it forthwith springs into exist-
ence, even though the offerer does not yet know of the accept-
ance of the offeree. English law accepts this doctrine so far
as to decide that " if acceptance through the post is expressly
or by implication prescribed or permitted by the offerer,
acceptance is made, and the contract is concluded, at the
moment when an acceptance is duly posted for transmission
to the offerer, even though the acceptance is delayed or lost
in the post." 1 Ordinarily, however, acceptance is not complete
until it is communicated to the offerer. 2
2. Mistake concerning what was principally intended in the
contract is said to be substantial, and it renders the contract
null and void, for there is then no agreement of wills in the
same matter. Thus, if one of the parties thinks that the
contract is one of hiring, while the other thinks it is a sale,
the mistake is substantial, and there is no contract. Similarly,
mistake about the matter of the contract is substantial, and
vitiates it, as if one thinks he is buying gold, while the other
knows that it is brass. Mere ignorance as to what the object
was would not make the contract invalid. Again, if one of
the parties makes his consent conditional on some definite
point, there will be no consent and no contract if the condition
is not verified. Mistake concerning the other party to the
contract is as a rule not substantial, and does not vitiate the
contract. In marriage, however, and in gratuitous contracts
in favour of a certain person for purely personal reasons,
mistake about the person of the other party is substantial.
Even in onerous contracts mistake about the person with
whom the contract is made may be substantial in special
circumstances, when for particular reasons the consent is given
only to a definite person.
3. Mistake about what is accessory and accidental in a
contract does not invalidate it, for there is agreement about
1 Digest of English Civil Law, n. 198. 2 ibid., n. 196.
3oa ON CONTRACTS
what is substantial and essential. Even if the party would not
have entered into the contract if he had not been under a
mistake about some matter which is accidental to it and not
substantial, still the contract is valid, for, in fact, he gave his
consent ; unless, of course, he only gave consent conditionally,
on some supposition which was not verified.
4. If, however, one of the parties was induced to give his
consent by the fraud or misrepresentation of the other, and
he would not otherwise have entered into the contract, the
contract is voidable at the option of him who was deceived.
The law of nature seems to indicate this as a suitable means
of repairing the injury done by the fraud, and it is confirmed
by English civil law.
Even if there be no fraud or misrepresentation but only
non- disclosure of facts which it was of importance for the
other party to know, this will suffice to enable the party who
had a right to full knowledge to avoid contracts of marine, fire,
and life insurance, for the sale of land, for family settlements,
and for the allotment of shares in companies. Such contracts
are in English law said to be uberrimae fidei.
5. A contract is also voidable at the option of one of the
parties who has entered into it under duress i.e., actual or
threatened violence affecting the contracting party, or his wife,
parent, or child, and inflicted by the other party to the con-
tract, or by someone acting with his knowledge and for his
advantage. Fear caused in other ways does not invalidate
the contract or make it voidable, unless it was so great as to
deprive the contracting party of the use of reason. When
one of the parties stands to the other in the relation of parent,
guardian, trustee, medical attendant, legal adviser, spiritual
director, or the like, any contract between them by which the
one in authority obtains benefit or advantage may, according
to English law, be set aside by the other on the ground of
undue influence, unless it can be shown that the transaction
was fair. The burden of proving this rests on the superior,
who will seldom be successful unless he can show that the
other had access at least to independent advice.
CHAPTER III
CAPACITY OF PARTIES
i . BY the law of nature, all persons who have the full use of
reason are capable of entering into contracts. On the other
hand, children who have not yet attained the full use of reason,
persons of unsound mind, and those who are drunk, cannot
make valid contracts. We must, however, take into account
the provisions of positive law which affect contractual capacity.
2. Religious who are professed to solemn vows, and are
consequently incapable of holding property personally, cannot
personally acquire property rights or liabilities under contract.
Religious who are under simple vows are capable of holding
property, and they can make valid contracts with reference
to it; but they do not act lawfully without the permission of
their superiors. In other matters, also, religious are dependent
on the will of their superiors, and cannot lawfully undertake
contractual obligations without their permission. If they do
so, the contracts may be avoided by the superior, except as
regards the acquired rights of third parties (Can. 536).
3. A married woman is now, by the Married Women's
Property Acts, 1882 and 1893, in the same position as a single
woman as regards the acquisition and disposal of property,
and the acquisition of rights and liabilities in contracts. Still,
she is not personally liable in respect of contract nor for fraud
committed in connection with contract. Her liability can only
be enforced against her property. She cannot be made a
bankrupt unless she is carrying on a trade apart from her
husband. 1
4. A minor can enter into a binding contract which is for
his advantage, as, for example, an apprenticeship ; he can also
make a valid contract to pay a reasonable price for necessaries,
or for goods and services which are suitable to his position
and which are actually required for his reasonable comfort.
Other contracts entered into by minors are void in law and
voidable in conscience, and no ratification of them after full
age has been attained is enforceable, whether there be a new
consideration for them or not. Of course, a minor cannot
1 Digest of English Civil Law, n. 71.
33
304 ON CONTRACTS
abuse the privilege which the law gives him in order to cheat
and defraud others ; if he has obtained a benefit even by con-
tracts which are void by English law, he must pay a just price
for it, and even English law will not enable him to recover
money paid by him under such contracts if he has received
benefit under them. 1
5. Convicts under sentence of death, or undergoing penal
servitude for crime committed, have no legal capacity, and
cannot enter into a contract which English law will recognize.
Any property belonging to such a convict is administered in
accordance with the provisions of the Forfeiture Act, 1870,
by an administrator appointed by the court.
6. The unilateral acts of a person of unsound mind are by
English law void, unless they were done during a lucid interval.
His contracts other than marriage are valid, unless it can be
shown that the other party to the transaction was aware of the
unsoundness of mind. In that case they are voidable at the
option of the person of unsound mind or his representatives.
The same rules hold good of the contracts of drunkards in
English law.
7. Corporations or artificial persons are per se capable of
entering into contracts through their agents in much the same
way as natural persons. Those, however, that are created
under the authority of English law by statute, or are formed
under general statutes such as the Companies Acts, for definite
purposes, are held incapable of binding themselves for objects
clearly beyond those purposes as declared in the company's
constitution. 2
1 Digest of English Civil Law, n. 54.
2 Encyclopedia of Laws, s.v. Contract.
CHAPTER IV
THE MATTER OF CONTRACT
i. THE subject-matter of a contract must be something that
is possible, for there can be no obligation to do what is im-
possible. Mere inability, however, to perform what one
promised must not be confounded with impossibility. If the
performance of a contract is contrary to the course of nature,
it is void. No one can bind himself by contract to visit and
report on the other side of the moon. ;
If at the time of concluding the contract the performance
of it was impossible in fact, it is not void unless the parties
contracted conditionally upon performance being possible in
fact. The contract also remains valid if it was possible at the
time of concluding it, but subsequently it becomes impossible
without fault of either party, unless the parties intended that
the contract should cease to be binding if performance became
impossible. This intention is presumed when the possibility
of performance was known by the parties to depend upon the
continued existence of some thing, condition, or state of things,
which has ceased to exist, and when the performance becomes
impossible by reason of the death or illness of one of the parties,
in the case of an agreement relating to personal services to be
rendered by that party. 1
When the performance of a contract is or becomes in part
possible and in part impossible, it is a question of intention,
depending in each case on usage and construction, whether
the partial impossibility avoids or discharges the contract.
2. The matter of a contract must either exist or there must
at least be some probability of its future existence when the
contract is entered into, otherwise there is nothing of value
and no right to transfer, and a necessary condition for a contract
to come into existence is wanting.
3. The matter must be determinate or capable at least of
being determined, otherwise the terms of the contract will be
too vague, and no agreement of wills on the same matter is
possible.
4. The matter must be something of which the contracting
1 Digest, n. 294 ff
! 305 ao
306 ON CONTRACTS
party has the disposal, or of which he will have the disposal
when the contract has to be executed, for he cannot transfer
to another what he cannot dispose of. When an object is
already due to another in justice, its transfer to him cannot
form the matter of a new contract, and so if a judge sells justice
to a litigant he is bound to restore the bribe, to which he has
no title. One may, however, enter into a contract with a third
person to do what is already owing in justice to someone else,
provided that both obtain their full rights. A doctor, for
example, may charge next-door neighbours the full fee for
a visit to each, though he has only the trouble and expense of
one journey. Similarly, what is already due, not in justice
but out of charity or some other virtue, may form the matter
of contract.
5. There can be no obligation to do what is wrong, and so
the matter of a contract must be something which is lawful
and honest. It is obvious that a contract to do what is for-
bidden by the moral law is invalid. If, however, such a
contract has been executed and the crime committed by one
of the parties, the question arises whether he has a right to the
money or other compensation which was promised,. and which,
as we suppose, may be received without sin. There are two
opinions about this question. Some theologians hold that
no such right can exist, for the contract was invalid from the
beginning and remains so; mere lapse of time cannot make
it valid. On the other hand, many great authorities maintain
that the actual doing of the sinful action in favour of one party
to whom it is agreeable, and to whom it affords advantage of
some sort, is the concluding of an innominate contract, and
gives the party who did it a claim in justice to the compensa-
tion promised. Both views are probable, and so after the sin
has been committed, and consideration for it has been paid,
there will be no obligation to make restitution.
Sometimes the Church forbids a contract under pain of
sin only, and then such contract will be unlawful but valid,
as is a mixed marriage without the requisite dispensation;
sometimes she forbids a contract and also invalidates it, as
she does clandestine marriages.
There are some contracts which are illegal in English law,
and yet they are valid in common estimation. This is the
case with betting, and so if the contract is valid according to
the law of nature, it will be obligatory in conscience, though
unenforceable by English law. Other illegal contracts which
are forbidden by the^ civil ilaw of England are not thereby
THE MATTER OF CONTRACT 30?
made invalid in conscience if they are valid by the law of
nature. The law merely affects the external legality of the
contract which it refuses to enforce. If, however, one who
has entered into such a contract wishes for good reason to
avoid it, and acts without fraud or injustice to the other party,
he may take advantage of the law and rescind his contract.
This doctrine is in keeping with what has already been said in
similar questions concerning the effect of civil law and with
the views of modern theologians on the subject.
CHAPTER V
CONSIDERATION, AND THE EFFECTS OF CONTRACT
i. BY English law no simple contract is binding upon a party
unless he receives consideration for his promise. The promisor
is said to receive consideration for his promise when the
promisee does, forbears, or suffers, or promises to do, forbear,
or suffer, something in exchange for, and at the time of, the
promise made to him.
Inasmuch as the intrinsic reason and motive for entering
into a contract is an essential element of it, and a condition
sine qua non of its existence, to this extent we may say that
consideration is necessary for the validity of a contract by the
law of nature. Thus, if I give an alms to a beggar merely
because he represents himself to be destitute, he will have no
right to the alms if he is not destitute but well off. Again,
if I buy a horse for running in a carriage and the animal which
I obtain is quite useless for my purpose, the contract is null
and void. However the English doctrine of consideration is
different from this. In English law consideration must be
something of value, not necessarily of equal or adequate value,
but there must be a quid pro quo; a merely good consideration,
as pity, gratitude, or relationship, will not be sufficient. If a
simple contract has no such valuable consideration, it has no
binding force. However, want of valuable consideration will
not make a contract null and void in conscience; it will be
valid in conscience if it has all the elements required by the
law of nature, and in consequence it will be obligatory in the
forum of conscience. It will merely be unenforceable in
English courts of law.
2. The primary effect of a contract is to impose an obliga-
tion on the parties which binds them in justice to fulfil the
contract. If one party fails to do so, the other will have a
right to be compensated for the loss that he has suffered.
The extent and quality of the obligation imposed by a
contract will depend on the intention of the parties, which
may be gathered not only from the express terms used by
them, but also from the law, from custom, usage, and the
character of the parties.
308
CONSIDERATION, AND EFFECTS OF CONTRACT 309
Only the parties who entered into the contract are bound
by it. They may agree together to confer a benefit on some
third person; the latter will then receive advantage from the
contract, but his rights and liabilities will not be affected by it.
3. It used to be a common practice to confirm an agree-
ment by oath, and the older theologians have much to say on
the questions which arise from such a practice. It is now
seldom done, and the matter may be treated briefly.
If an oath is added to a valid contract, besides the obligation
of justice, a fresh obligation is added which binds the party
out of reverence for his oath to fulfil his engagement. Inas-
much as the oath is accessory, and what is accessory follows
the nature of the principal, the obligation arising from the oath
will receive its interpretation from, and will cease with, the
obligation of the contract. By Roman law, whose provisions
were adopted by the canon law, the contracts of minors and
certain other contracts which were of themselves rescindable,
became irrescindable when they were confirmed by oath.
This, however, was an effect of positive law, which has no
counterpart in English jurisprudence.
4. The obligation of a contract may, according to the inten-
tion of the parties, depend on whether a certain event has
happened or will happen in the future. The contract is then
conditional, not absolute. If the event is past or present, but
it is not known by the parties whether it has happened or
not, the contract at once is valid or not, according as the con-
dition is fulfilled or not, but the parties will not know whether
they are bound by the contract until they know whether the
condition be fulfilled or not.
When the event is future, and its happening will, according
to the intention of the parties, discharge the parties from
obligation under the contract, the condition is subsequent.
The parties are bound by the contract and will continue to
be so bound, unless and until the subsequent condition is
verified.
When the parties agree that the contract shall depend upon
the happening of a future event, there is a condition precedent.
An obligation at once arises from such an agreement of awaiting
the event ; when it has taken place the contract becomes abso-
lute and begins to bind without any fresh act of the contracting
parties; if the event does not take place, the obligation is
discharged.
5. Sometimes on entering into a contract something is given
as earnest, which serves as evidence that the contract has been
3 io ON CONTRACTS
concluded, or as security that it shall be performed. Unless
there is a contrary agreement between the parties, the earnest
will be treated as part payment or will be returned upon per-
formance; it will be forfeited if the party who gave it fails
to perform; it will be returned if the party who received it
fails to perform.
If it is agreed that a certain sum is to be paid in the event
of breach of contract by the party who was in default, the
whole sum will be due if it represents liquidated damages.
If, on the contrary, it is a penalty, the injured party, according
to English law, cannot recover more than the amount of the
loss actually suffered by him. 1
1 Digest, n. 313.
CHAPTER VI
DISCHARGE OF CONTRACT
THE obligation arising from a contract may cease to exist in
several ways :
1. By mutual agreement, by which each party renounces
his rights under the contract. Cessation of contract by merger
of one in another, or by substitution of one for another, may
be classed under this head.
2. A contract ceases by performance when each party has
wholly performed his duty under it.
3. When a contract consists of reciprocal promises, and one
party fails to perform, or clearly expresses an intention not
to perform, or disables himself from performing his promise,
the other party may, at his option, treat the contract as at an
end, and it is thereby discharged. Failing this, the injured
party continues liable to perform his part, but he may claim
damages for breach of contract by the other.
4. A contract which has for its object the rendering of a
personal service is discharged by the death or incapacitating
illness of the promisor.
5. There is no prescription against the obligation of a
contract in English law, but a trustee in bankruptcy may
repudiate the contracts of the bankrupt if they appear to be
unprofitable.
CHAPTER V
CONSIDERATION, AND THE EFFECTS OF CONTRACT
i . BY English law no simple contract is binding upon a party
unless he receives consideration for his promise. The promisor
is said to receive consideration for his promise when the
promisee does, forbears, or suffers, or promises to do, forbear,
or suffer, something in exchange for, and at the time of, the
promise made to him.
Inasmuch as the intrinsic reason and motive for entering
into a contract is an essential element of it, and a condition
sine qua non of its existence, to this extent we may say that
consideration is necessary for the validity of a contract by the
law of nature. Thus, if I give an alms to a beggar merely
because he represents himself to be destitute, he will have no
right to the alms if he is not destitute but well off. Again,
if I buy a horse for running in a carriage and the animal which
I obtain is quite useless for my purpose, the contract is null
and void. However the English doctrine of consideration is
different from this. In English law consideration must be
something of value, not necessarily of equal or adequate value,
but there must be a quid pro quo; a merely good consideration,
as pity, gratitude, or relationship, will not be sufficient. If a
simple contract has no such valuable consideration, it has no
binding force. However, want of valuable consideration will
not make a contract null and void in conscience; it will be
valid in conscience if it has all the elements required by the
law of nature, and in consequence it will be obligatory in the
forum of conscience. It will merely be unenforceable in
English courts of law.
2. The primary effect of a contract is to impose an obliga-
tion on the parties which binds them in justice to fulfil the
contract. If one party fails to do so, the other will have a
right to be compensated for the loss that he has suffered.
The extent and quality of the obligation imposed by a
contract will depend on the intention of the parties, which
may be gathered not only from the express terms used by
them, but also from the law, from custom, usage, and the
character of the parties.
308
CONSIDERATION, AND EFFECTS OF CONTRACT 309
Only the parties who entered into the contract are bound
by it. They may agree together to confer a benefit on some
third person; the latter will then receive advantage from the
contract, but his rights and liabilities will not be affected by it.
3. It used to be a common practice to confirm an agree-
ment by oath, and the older theologians have much to say on
the questions which arise from such a practice. It is now
seldom done, and the matter may be treated briefly.
If an oath is added to a valid contract, besides the obligation
of justice, a fresh obligation is added which binds the party
out of reverence for his oath to fulfil his engagement. Inas-
much as the oath is accessory, and what is accessory follows
the nature of the principal, the obligation arising from the oath
will receive its interpretation from, and will cease with, the
obligation of the contract. By Roman law, whose provisions
were adopted by the canon law, the contracts of minors and
certain other contracts which were of themselves rescindable,
became irrescindable when they were confirmed by oath.
This, however, was an effect of positive law, which has no
counterpart in English jurisprudence.
4. The obligation of a contract may, according to the inten-
tion of the parties, depend on whether a certain event has
happened or will happen in the future. The contract is then
conditional, not absolute. If the event is past or present, but
it is not known by the parties whether it has happened or
not, the contract at once is valid or not, according as the con-
dition is fulfilled or not, but the parties will not know whether
they are bound by the contract until they know whether the
condition be fulfilled or not.
When the event is future, and its happening will, according
to the intention of the parties, discharge the parties from
obligation under the contract, the condition is subsequent.
The parties are bound by the contract and will continue to
be so bound, unless and until the subsequent condition is
verified.
When the parties agree that the contract shall depend upon
the happening of a future event, there is a condition precedent.
An obligation at once arises from such an agreement of awaiting
the event ; when it has taken place the contract becomes abso-
lute and begins to bind without any fresh act of the contracting
parties; if the event does not take place, the obligation is
i*ii * *
discharged.
5. Sometimes on entering into a contract something is given
as earnest, which serves as evidence that the contract has been
3 to ON CONTRACTS
concluded, or as security that it shall be performed. Unless
there is a contrary agreement between the parties, the earnest
will be treated as part payment or will be returned upon per-
formance; it will be forfeited if the party who gave it fails
to perform; it will be returned if the party who received it
fails to perform.
If it is agreed that a certain sum is to be paid in the event
of breach of contract by the party who was in default, the
whole sum will be due if it represents liquidated damages.
If, on the contrary, it is a penalty, the injured party, according
to English law, cannot recover more than the amount of the
loss actually suffered by him. 1
1 Digest, n. 313.
CHAPTER VI
DISCHARGE OF CONTRACT
THE obligation arising from a contract may cease to exist in
several ways :
1. By mutual agreement, by which each party renounces
his rights under the contract. Cessation of contract by merger
of one in another, or by substitution of one for another, may
be classed under this head.
2. A contract ceases by performance when each party has
wholly performed his duty under it.
3. When a contract consists of reciprocal promises, and one
party fails to perform, or clearly expresses an intention not
to perform, or disables himself from performing his promise,
the other party may, at his option, treat the contract as at an
end, and it is thereby discharged. Failing this, the injured
party continues liable to perform his part, but he may claim
damages for breach of contract by the other.
4. A contract which has for its object the rendering of a
personal service is discharged by the death or incapacitating
illness of the promisor.
5. There is no prescription against the obligation of a
contract in English law, but a trustee in bankruptcy may
repudiate the contracts of the bankrupt if they appear to be
unprofitable.
PART II
ON SPECIAL CONTRACTS
CHAPTER I
ON PROMISES
i. A SIMPLE promise is a unilateral and gratuitous contract
by which the promisor binds himself to do something for
another.
English law will not enforce a simple promise for which
no valuable consideration was given and which was not entered
into by deed. In truth, a simple promise is hardly considered
to be a contract, inasmuch as this term is confined to such
agreements as the law will enforce. However, in the forum
of conscience a simple promise begets an obligation to fulfil it,
for an honest man is faithful to his promises.
The mere expression of an intention or of a purpose to do
something must be distinguished from a true promise. No
new obligation is created by the former, whereas a promise
imposes on the promisor a new obligation. This obligation
arises from his intention to bind himself by his promise which
must be made known to, and accepted by, the promisee. Until
acceptance there is merely an offer, which may be revoked at
will by the offerer; when the offer is accepted the promise
becomes a binding contract.
2. There is a dispute among theologians concerning the
kind and quality of the obligation imposed by a simple promise.
An onerous promise for which consideration is given by the
other party and mutual promises bind in justice, and con-
sequently under pain of grievous sin in serious matter. Simi-
larly, where the promisee has been led to rely on a promise,
and would suffer serious loss unless the promise were fulfilled,
the promisor will be under a grave obligation to fulfil it. Apart
from these circumstances the obligation of a simple promise
will depend on the intention of the promisor. If he intended
to give the promisee a strict right to what was promised, he
will be bound in justice ; otherwise he will only be bound by
the virtue of fidelity, which is a self-regarding virtue, and
313
ON PROMISES 313
imposes an obligation to make the fact agree with one's word.
The virtue of fidelity of itself only binds under pain of venial
sin.
3. A promise will cease to bind if some event takes place
or becomes known subsequently which would have prevented
the promisor from making the promise if it had happened or
been known beforehand. For a simple promise is essentially
conditional; the promisor binds himself to do something
under certain suppositions and in certain circumstances; if
those suppositions are not verified, or if the circumstances
become changed, the obligation of the promise ceases. All
the more will a promise cease to bind if what was promised
becomes unlawful and wrong, or useless, or impossible. It
is obvious that release by the promisee, and other causes,
which are sufficient to discharge contracts according to what
was said above, will also suffice to do away with the obligation
of a promise.
CHAPTER II
ON GIFTS
i. A GIFT is a unilateral contract by which property is
gratuitously transferred to another. It differs from a promise
in that it takes effect at once, while a promise regards the
future, and from such contracts as sale and exchange in that
it is gratuitous. A gift inter vivos is distinguished from a gift
mortis causa in that the latter is made in contemplation of
death and becomes irrevocable only if death follows. If
death does not ensue, a gift mortis causa is thereupon revoked.
A gift inter vivos was revocable by Roman law on account of
ingratitude and for certain other reasons ; by English law such
a gift is irrevocable (cf. Can. 1536).
2. By the law of nature any property may be transferred to
another by gift provided that the donor is capable of making
a valid gift, and it is accepted by the donee. Positive law
requires other conditions to be fulfilled in order that a gift
may be recognized and enforced in the civil courts. Thus
English law requires a gift of chattels to be completed by
actual delivery unless it is made by deed. Certain kinds of
property can only be given by deed. These and similar
provisions do not invalidate a gift which is made without the
formalities required by law, but if a gift is disputed, and the
authority of the law is invoked, both parties must stand by
the decision of the Court. A gift to pious causes is governed
by ecclesiastical law, which requires for its validity nothing
more than what is necessary by the law of nature (Can. 1513,
2348).
The Church prescribes that in gifts made to the Church
or pious causes, the formalities required by civil law should
be observed as far as possible.
CHAPTER III
ON WILLS
i . A WILL is a legal declaration of a person's intentions which
is to take effect after his death. In English law a will is not
necessarily a disposition of property; the appointment of a
guardian for one's children, or of an executor who will dis-
tribute the estate according to law, is a will if accompanied
by the proper legal formalities. Ordinarily, indeed, a will is
a |disposition of property, but it frequently contains other
provisions as well, as to the place of one's burial and other
matters.
A will is not, strictly speaking, a contract, for the consent
of the beneficiaries under it is not required for its validity,
but it partakes of the nature of a unilateral contract, and is
usually treated as such by theologians.
Lawyers and theologians are by no means agreed as to the
source whence a will derives its effect. Some hold that the
power of testamentary disposition is derived from the law of
nature, inasmuch as there is nothing to prevent a man from
doing some act and at the same time suspending its effect
until after his death. Others maintain that the will of a person
cannot produce its effect when that person is already dead;
no disposition of property can be made by a human will that
has ceased to act as far as outward manifestation is concerned.
Nor does a will produce its effect until the testator be dead.
They conclude, then, that the power of testamentary disposi-
tion is derived from positive law. We may, perhaps, hold as
certain that the law of nature gives owners of property the right
to dispose of it in some way in view of death, but that it does
not determine of itself the method of disposition by will. This
precise method is a result of the determination of the natural
by positive law.
2. To be valid in English law a will must be made accord-
ing to the provisions of the Wills Act (i Viet. c. 26, sec. 9),
which enacted " that no will shall be valid unless it shall be
in writing and . . . signed at the foot or end thereof by the
testator or by some other person in his presence, and by his
direction, and such signature shall be made, or acknowledged,
315
316 ON CONTRACTS
by the testator in the presence of two or more witnesses,
present at the same time, and such witnesses shall attest and
shall subscribe the will in the presence of the testator, but no
form of attestation shall be necessary."
By section 1 1 of the same Act an exception to the rule that
a will must be in writing is allowed in the case of any soldier,
being in actual military service, or any mariner or seaman,
being at sea. These may make a valid nuncupative will of
their personal estate by word of mouth, even if they be minors.
We saw above that it is a disputed point among theologians
whether an informal will is valid in the internal forum of con-
science, though it be invalid in law. Probably it is valid if it
express the intentions of the testator, until a party interested
moves to have it set aside. All parties must stand by the
decision of the court.
A codicil, according to the terminology of modern English
law, is a testamentary instrument altering or modifying a will.
It requires for its validity the same formalities as does a will,
and it may take effect without a will, if no will be forthcoming.
A codicil to a particular will, or which refers to the provisions
of the will, republishes the will and makes it speak as of the
date of the codicil. But a testamentary instrument which is
not described as a codicil to a will, and does not refer to a
will, has not the effect of republishing the will.
A legacy is a gift in the form of a direction by testamentary
instrument that the legal personal representative of the testator
shall pay, transfer, or provide some money or thing to the
recipient or legatee. The legatee derives his legacy from the
executor, not immediately from the testator.
Anyone may be a legatee. A legacy bequeathed to a creditor
of the testator is presumed to be in payment of the testator's
debt, but the courts look with disfavour on this doctrine, and
are quick to discover reasons for setting it aside. A legacy
to an infant may be paid to him if the testator so direct ; other-
wise the legacy must be retained until the infant attains the
age of twenty- one, or paid to his testamentary guardian, or
paid into court.
A legacy may be given on condition, either precedent or
subsequent. Conditions against change of religion are valid
in English law.
A legacy may fail from invalidity of the instrument con-
ferring it, from uncertainty or vagueness of the terms of the
bequest, or uncertainty of the person designated; from in-
solvency of the testator's estate; from the testator having
ON WILLS 3i7
disposed of the object in his lifetime if the legacy be specific;
or from his having paid the legacy in his lifetime; and from
the non-fulfilment of a, condition on which the legacy was
given. The legacy also lapses on the death of the legatee in
the testator's lifetime.
If a legatee has been paid, and the estate subsequently
proves to be insufficient either from the discovery of further
debts or the loss of assets, he may be compelled to refund his
legacy in favour of creditors, and similarly a residuary legatee
may be compelled to refund in favour of general legatees.
Legacies ordinarily become due on the death of the testator,
but they are not payable for a year, that period being allowed
executors in order to collect the assets and to pay the debts.
To secure the safety of trusts and bequests to Catholic
objects, attention must be paid to various provisions of English
law. The rule against perpetuities is designed to prevent
property from being tied up permanently, and to obtain this
end it requires that every use or trust must be so limited as
necessarily to vest within a life or lives in being and a further
period of twenty-one years. A tolerably large class of objects
technically called " charitable " has, however, been exempted
from this rule. Among these objects are the promotion of
any form of lawful religion, the relief of the aged and poor,
the maintenance of the sick, the establishment of free schools,
and others of a similar kind. Such trusts and bequests as
English law considers to be " charitable " are therefore upheld,
though they may infringe the rule against perpetuities. On
the other hand, bequests for prayers and Masses for the dead
were void as being bequests for " superstitious uses," but this
doctrine is now abandoned. Trusts and bequests for the
benefit of religious communities of men " bound by monastic
or religious vows " are also void, as such communities are
illegal in England. The Irish courts hold bequests for Masses
to be for " pious uses " and not void, but subject to the rule
against perpetuities as not being " charitable " in the technical
sense. Trusts and bequests of land or of money to be laid
out on the purchase of land are also subject to the Mortmain
Acts.
These legal provisions do not bind the conscience with
regard to legacies left to Catholic pious causes, nor is a Catholic
justified in invoking them to make a pious legacy void for his
own gain, but they should be known so that property left for
Catholic purposes may be expended in accordance with the
will and intention of the testator or donor (Can. 2348).
318 ON CONTRACTS
Wills and bequests for pious purposes among Catholics are
governed by canon law, which requires nothing more than
certain proof of the intention of the testator in order to make
a testamentary disposition of property valid. It follows from
this that bequests to pious causes contained in an informal
will are valid, if there is morally certain evidence that it was
the intention of the testator to make them. This doctrine
has been frequently confirmed by answers of the Roman
Congregations to questions proposed to them (Can. 1560,
sec. 4; 1513, sec. 2).
3. Those who have not yet attained the use of reason and
persons of unsound mind are incapable of making a will by
the law of nature. Religious who are solemnly professed are
incapable of making a valid will by the law of the Church.
Minors under the age of twenty- one cannot make a valid will,
according to English law.
A will that has been made under duress and undue influence
will be set aside if appeal be made to English courts. Women
married after December 31, 1882, can by will or otherwise
dispose of their separate property whether real or personal,
and women married before that date can by the Married
Women's Property Act, 1882, dispose in the same manner of
all property which accrues to them after that date.
4. A person who is capable of making a will may bequeath
his property, both real and personal, to whomsoever he wishes ;
the legitim or reasonable part is not recognized by modern
English law. This, of course, does not do away with the
moral obligation of providing for those who have claims on the
testator by reason of kindred or other ties. Still, for just cause,
the testator may take advantage of the law, and leave nothing
to one who otherwise would have been benefited under his will.
If a person dies intestate, his property will be distributed
among his next of kin according to the statutes of distribution.
A person may be under a moral obligation of making a will
from the command of a lawful superior, or because quarrels
and dissensions about his property will be the consequence of
his dying intestate.
5. A will is revoked by the subsequent marriage of the
testator, by the due execution of a subsequent will which is
inconsistent with the former, or by some writing declaring an
intention to revoke the same and executed in the manner in
which a will is required to be executed; or by the burning,
tearing, or otherwise destroying the same by the testator or
by some person in his presence and by his t direction, with the
ON WILLS 319
intention of revoking the same. Such are the provisions of
section 20 of the Wills Act, 1837, and section 21 should also
be noted. It is as follows: " No obliteration, interlineation,
or other alteration made in any will after the execution thereof
shall be valid or have any effect (except so far as the words
or effect of the will before such alteration shall not be apparent)
unless such alteration shall be executed in like manner as
hereinbefore is required for the execution of the will ; but the
will, with such alteration as part thereof, shall be deemed to
be duly executed if the signature of the testator and the sub-
scription of the witnesses be made in the margin, or on some
other part of the will opposite or near to such alteration, or
at the foot or end of, or opposite to, a memorandum referring
to such alteration, and written at the end or some other part
of the will."
6. The execution of a will is usually confided by the testator
to a person or persons named by him and who are called the
executors. Anyone who is capable of making a will may be
made an executor, as may even a minor, though he cannot
act until he attains full age. One or several may be appointed,
but no one is bound to accept the office. If a person dies
intestate, or if no executor was appointed in the will, or if he
who was appointed refuse to act, an administrator will be
appointed by the court to administer the estate. The widow
or widower or the next-of-kin of the deceased person is as
a rule the person to be selected. The will must be proved
in the Probate, Divorce, and Admiralty division of the High
Court. Probate in common or non- contentious form may be
granted in the district registry within whose district the
deceased had a fixed place of abode. Where the assets are
small the county court has jurisdiction in contentious cases,
otherwise these must be settled in the High Court.
An executor is the legal representative of the testator, and
his duties are :
(a) To bury the deceased in a manner suitable to his estate.
There is no property in a dead body, and a direction by will
as to the disposition of the testator's body cannot be enforced
by English law. Thus the executor would not be bound to
have the body of the testator cremated, though directions to
that effect were contained in the will.
Ecclesiastical law forbids cremation under severe penalties,
and declares directions for cremation inserted in wills of no
effect (Can. 1203; 1240, sec. i, 5; 2339).
To obtain probate within the prescribed time.
320 ON CONTRACTS
(c) To collect the effects of the deceased with reasonable
diligence.
(d) To pay the debts of the deceased in the order and
manner prescribed by law, and in general in the following
order: funeral expenses, expenses of probate, Crown debts,
debts having priority by statute, debts of record, debts by
specialty and simple contract. The executor may voluntarily
pay an inferior debt before a superior one of which he had
no notice, and he is not at liberty to pay a debt which by law
cannot be enforced against the estate, with the exception of
a debt barred by time according to the statute of limitations.
(e) To distribute the estate according to the terms of the
will.
Where there is no executor these duties devolve on the
administrator appointed by the court, who, after payment of
debts, distributes the estate in accordance with the will, if
there is one, and if there is no will, then in accordance with
the statutes of distribution. To enable the executor or
administrator to fulfil these various duties he is allowed a
year by law before he can be compelled to pay legacies or to
distribute the estate.
CHAPTER IV
ON MUTUUM AND USURY
i. ECONOMIC goods may be divided into those which are
meant for immediate consumption and those which are meant
to subserve our wants by repeated use. In the first category
are articles of food and drink, in the second are commodities
which are capable of rendering continued services, such as a
saw, a sewing-machine, a house. It is with the first class of
goods that we have principally to do in this chapter. They
are sometimes called fungibles because any amount is inter-
changeable with the same quantity and quality of the same
commodity (mutua vice funguntur). Thus, if I lend a bushel
of wheat, I shall be satisfied if I get back a bushel of the same
quality; I do not expect to receive back the same identical
grain. The matter of the contract of mutuum is something
fungible, which is consumed in the very first use of it.
It is obvious that such commodities may be the matter
of many different contracts. They may be the matter of the
contract of sale, or gift, or exchange, or loan. The contract
which was called mutuum in Roman and canon law was a
gratuitous loan of a fungible commodity on condition that
after a certain period of time the borrower should restore to
the lender an equal quantity of the commodity and of the
same quality. Unfortunately, we have no term in English
which is the precise equivalent for mutuum. We use the
term loan of lending a horse, which we expect to be restored
to us in specie, and of lending a bottle of wine, which we do
not expect back but another instead of the same size containing
the same quality of wine. As an equivalent for mutuum we
may make use of the expression loan for consumption as dis-
tinguished from loan for use.
In all contracts justice requires that values which are given
in exchange should be equal. A sin against justice is com-
mitted by charging an unreasonable price for a horse. What
the reasonable price is depends on the demand, on the avail-
able supply, and on a great variety of factors, but it is proxi-
mately determined by the common estimation of intelligent
men at a fixed time in a certain place. The fair price of a
si
322 ON CONTRACTS
fungible commodity which is consumed in the first use of it
is the money equivalent of the value which that use has. The
commodity is for consumption, and the only value that it has
is the value of that consumption. There is no other use in the
commodity which can give it any additional value. The fair
price of a bottle of wine is the money equivalent of the value
which the wine has for drinking. In other words, the value
of the first consumption of the commodity is the value of the
commodity.
On the other hand, commodities which are not consumed
in the first use of them, but which continue to render repeated
services, have a value over and above that of the first use.
The value of a house is greater than the value of the lease of
it for a year, because the house will continue to render services
and be valuable after the year's lease of it expires. The fair
price, then, of a commodity which is not consumed in the first
use of it will be greater than the value of that first use.
All this seems evident, yet with a view to the deductions
which we shall presently make, it is well to strengthen what
has been said by the words of a modern professor of political
economy. Dr. G. Cassel writes : " All economic goods may
be divided into two categories : those which satisfy our wants
in being consumed at once, and those which afford a series of
useful services before they are worn out. Food is an instance
of the former category, houses of the second. This line of
subdivision is one of the most fundamental in economic
science. The price paid for an article of immediate consump-
tion is, of course, the same as the price paid for the use of
this article. This is not so in the case of an article belonging
to the second category. The price paid for the single useful
service it affords is one thing; the price paid for the article
itself is quite another." 1
2. Money considered as a medium of exchange is a fungible ;
it is a commodity whose use is exhausted for the owner of it
when he has paid it in exchange for value received. It is
not, under this respect, a commodity which is susceptible of
repeated use by the same owner. Money, then, may be the
matter of a contract of loan for consumption, and, if a sum of
money be thus lent, justice requires that an equal sum be
returned at the end of the term, and justice will not allow a
greater sum to be exacted in return. For the whole value of
the sum of money is the value it has for making exchanges,
the value which it has in the first expenditure of it; and if,
1 The Nature and Necessity of Interest, p. 86 (1903).
ON MUTUUM AND USURY 323
over and above the sum lent, a further sum were demanded
for the use of the money, the same thing would be charged for
twice over. An equal sum is due in return for the use of the
money; a further sum would be a second payment for the
same use. Thus when money is regarded merely as a medium
of exchange a sin against justice is committed if an additional
sum besides the principal is exacted for a loan ; it is called the
sin of usury, money unduly exacted for the use of money.
This is the reasoning of Aquinas, 1 and it seems as cogent
to-day as it was in the thirteenth century. By this argument
he defended the doctrine concerning usury which the Fathers
and Doctors drew from Holy Scripture and tradition. Bene-
dict XIV sums up the constant teaching of the Church on
usury in his celebrated encyclical, Vix pervenit. There the
Pope says: " The sin which is called usury consists in this,
that from the loan for consumption (which of its own nature
requires that only so much as was received should be returned)
the lender desires more to be returned to him than the bor-
rower received, and therefore contends that some gain, over
and above the principal, is due to him merely on account of
the loan. For whoever, when once a sum equal to the debt
has been repaid, is not ashamed to exact something more
from the borrower on account of the mere loan, which has
been repaid by the equal sum, such a one stands convicted
of acting against the obligation imposed by a loan for con-
sumption, which requires equality between the sum lent and
the satisfaction for it " (cf. Can. 1543).
This argument is valid when money is regarded as a means
of exchange for articles of consumption and a measure of their
value. Until modern times this was the chief function of
money, but now we find that the above argument does not
impress us with convincing force because in modern society
money is not only a means of exchange for articles of con-
sumption and a common measure of value, but also the most
convenient form of storing capital. Within the last hundred
or hundred and fifty years modern society has become capital-
istic, and money is the chief form of capital. No wealth-
producing object of importance can be undertaken without
a supply of money, and money is now readily exchangeable
for land, machinery, means of distribution, and other instru-
ments for the production of wealth. Capital is one of the
factors necessary for the production of wealth, and it is the
chief instrument of its production. Money, then, looked
1 Summa, 3-2, q. 78, a. i.
324 ON CONTRACTS
upon as capital, is not a mere fungible ; it is not a commodity
which is consumed in the first use of it ; it is the main instru-
ment necessary for the production of wealth, and it thereby
acquires a new function; it becomes virtually productive and
puts on the nature of land and machinery, with which it is
so readily exchangeable. Indeed, nowadays land can hardly
put forth its natural productivity without the aid of capital,
and machinery cannot be worked for the production of wealth
without it. It follows, then, that nowadays money is not
merely a means of exchange ; it is also an instrument of pro-
duction, and just as money may be charged for the use of
land, or of a house, so money may be charged for the use of
money. Money now has its fair and reasonable price like
any other commodity, and the sin of usury is committed not
by taking a fair and reasonable interest for a loan, but by
exacting excessive interest. What is a fair and reasonable
interest is a question whose solution depends upon circum-
stances, and, proximately, on the common estimation of
intelligent men, like the fair and reasonable price of other
commodities.
The foregoing seems to be the true solution of the old and
much- disputed question of usury. It rests on historical facts
and economic truths which are commonly admitted by modern
theologians and economists, and it furnishes a satisfactory
explanation of the changed attitude towards the taking of
interest for money loans which the Church has adopted in
modern times. Canon 1543 rests the title for taking moderate
interest for money on positive law.
Although the use of money as capital was known in par-
ticular places and especially in centres of commerce in former
ages, yet this use was exceptional and could not characterize
money in general. The capitalistic function of money was
of very gradual growth, and we have to wait till the latter
part of the eighteenth, or the first part of the nineteenth,
century before the capitalistic era was fully developed even
in the most advanced nations of Europe. It may be well to
quote one or two passages from economists of standing in
proof of this. Dr. Cunningham writes: " In dealing with the
Christendom of earlier ages we have found it unnecessary to
take account of capital, for, as we understand the term in
modern times, it hardly existed at all. In the fourteenth and
fifteenth centuries we may notice it emerging from obscurity,
and beginning to occupy one point of vantage after another,
until it came to be a great political power in the State. . . .
ON MUTUUM AND USURY 325
It would be still more hopeless to try to treat the intervention
of capital as an event which happened at a particular epoch,
or a stride which was taken within a given period. It is a
tendency which has been spreading with more or less rapidity
for centuries, first in one trade and then in another, in pro-
gressive countries. We cannot date such a transformation
even in one land; for though we find traces of capitalism so
soon as natural economy was ceasing to be dominant in any
department of English life, its influence in reorganizing the
staple industry of this country was still being strenuously
opposed at the beginning of the present century [the nine-
teenth]." 1
The following is from Professor Cassel's book, The Nature
and Necessity of Interest : " Interest paid for the use of capital,
not for the use of money. . . . . The question For what is
interest paid ? was taken up again, a few years afterwards, and
treated in the most successful way by the eminent French
economist, Turgot. He rejects the old idea of a ' price of
money,' and defines interest as the price given for the use of
a certain quantity of value during a certain time a formula
never afterwards surpassed in clearness and definiteness. He
shows how this price is fixed by demand and supply, and he
gives special attention to the causes which govern the demand
for capital. What he has to say on this subject is even in our
days of the highest value, and should not be neglected by any
serious student of the theory of interest. He puts capital
i.e., the use of a certain quantity of value during a certain time
as a factor of production on the same line with the other
factors." 2
Thus historical fact and scientific explanation of the rise
of the capitalistic age and the theory of interest on money as
capital synchronize with the beginnings of the change in the
Church's teaching on the lawfulness of interest on loans. In
the year 1830 the Holy Office gave answer to a question of the
Bishop of Rennes that confessors were not to be disturbed
who absolved penitents in spite of their taking interest on
money lent to merchants. Similar answers followed in quick
succession, so that now there is no practical difficulty as to
the lawfulness of taking moderate interest for money loans,
though the Church has not yet formally settled the general
question.
In England the usury laws, dating from Edward the Con-
fessor, were repealed in 1854, owing to the prevalence of the
1 Western Civilization, n. 114. 2 Page 20.
326 ON CONTRACTS
opinion that such laws were economically unsound and practi-
cally ineffectual. Experience, however, has shown that the
rapacity of usurious moneylenders requires curbing, and the
Moneylenders Act, 1900, empowered courts of justice to
grant relief from any usurious bargain which, in the opinion
of the court, was harsh and unconscionable.
Canon 1543 is as follows: " If a fungible be so given to
another that it becomes his and afterwards as much is restored
in the same kind, no gain can be received on account of the
contract itself; but in the lending of a fungible it is not per se
unlawful to make an agreement about the lawful interest, unless
it is certain that it is immoderate, or even about a greater
interest, if there be a just and proportionate title."
CHAPTER V
ON SALE
SALE is a contract by which the seller transfers the ownership
of a certain commodity to the buyer in consideration of a
fixed price. The English law on the sale of goods is different
from that on the sale of real property, and so we will divide
this chapter into two articles ; in the first we will treat of the
sale of goods, and in the second of the sale of realty.
As regards the alienation of; ecclesiastical property see
Can. 1530 ff.
ARTICLE I
On the Sale of Goods
1 . The term goods includes all personal chattels other than
things in action and money. It also includes emblements,
industrial growing crops, and things attached to or forming
part of the land which are agreed to be severed before sale
or under the contract of sale. 1
A contract of sale of goods may be made in writing, or by
word of mouth, or partly in writing and partly by word of
mouth, or it may be implied from the conduct of the parties.
If the value of the goods sold be ten pounds or upwards, the
contract cannot be enforced by action unless the buyer accept
part of the goods so sold, and actually receive the same, or give
something in earnest to bind the contract or in part payment,
or unless some note or memorandum in writing of the contract
be made and signed by the party to be chafed or his agent
in that behalf. This is a rule of the external forum and does
not affect the conscience.
2. The subject-matter of a contract of sale may be either
existing goods, owned or possessed by the seller, or goods to
be manufactured or acquired by the seller after the making
of the contract of sale. The contract may be absolute or
conditional. Whether a stipulation in a contract of sale is a
condition, the breach of which may give rise to a right to treat
the contract as repudiated, or a warranty the breach of which
may give rise to a claim for damages but not to a right to reject
1 Sale of Goods Act, 1893.
327
328 ON CONTRACTS
the goods and treat the contract as repudiated, depends in
each case on the construction of the contract, and in the forum
of conscience on the intention of the parties. In a contract
of sale, unless the circumstances of the contract are such as to
show a different intention, there is: (i) An implied condition
on the part of the seller that in the case of a sale he has a right
to sell the goods, and that in the case of an agreement to sell
he will have a right to sell the goods at the time when the
property is to pass; (2) an implied warranty that the buyer
shall have and enjoy qiu'et possession of the goods; (3) an
implied warranty that the goods shall be free from any charge or
encumbrance in favour of any third party not declared or known
to the buyer before or at the time when the contract is made.
According to English law there is no implied warranty or
condition as to the quality or fitness for any particular purpose
of goods supplied under a contract of sale, except as follows :
1. Where the buyer expressly or by implication makes
known to the seller the particular purpose for which the goods
are required, so as to show that the buyer relies on the seller's
skill or judgement, and the goods are of a description which
it is in the course of the seller's business to supply (whether
he be the manufacturer or not), there is an implied condition
that the goods shall be reasonably fit for such purpose, provided
that in the case of a contract for the sale of a specified article
under its patent or other trade name, there is no implied
condition as to its fitness for any particular purpose.
2. Where goods are bought by description from a seller
who deals in goods of that description (whether he be the
manufacturer or not), there is an implied condition that the
goods shall be of merchantable quality; provided that if the
buyer has examined the goods there shall be no implied condi-
tion as regards defects which such examination ought to have
revealed.
But whatever may be the rules of law for the external forum,
in the forum of conscience the contract will be invalid when-
ever on account of hidden defects the thing sold is substantially
different from what the buyer thinks that it is, for then there
is no consent in the same matter and the contract is void by
natural law. If hidden defects only lessen the value of the
thing, but do not make it substantially different from what
it appears to be, the price should be accommodated to the value,
but the seller is not bound to point out the defects to the buyer.
If asked about them, the seller should make known even acci-
dental defects, or say that he does not guarantee their absence.
ON SALE 329
3. By law the price may be fixed by contract, or may be
left to be fixed in manner thereby agreed on, or it may be
determined by the course of dealing between the parties. If
no price is thus determined, the buyer must pay a reason-
able price, and what is a reasonable price is a question of
fact dependent on the circumstances of each particular
case. 1
In conscience, however, the price of things sold does not
depend merely on the agreement of the parties. In contracts
the equality which justice demands must be observed, and so
in sale the price must be equivalent to the value of the thing
sold. We do not mean the individual value in use to the
buyer or to the seller, but the social or exchange value which
the thing possesses. This value will be represented by what
the law calls a reasonable price, and sometimes it is fixed by
law, so that certain commodities and services have a legal
price. In the Middle Ages there was a legal price for most of
the articles of commerce, and theologians taught that there is
an obligation in conscience to adhere to the legal price .as long
as the law is in force. In cases where the law has not deter-
mined the price, theologians teach that there is an obligation
in conscience to adhere to the natural or common price of the
commodity. This is not something purely subjective, much
less is it purely individualistic; it depends upon supply and
demand, upon the costs of production, the manner of sale,
and on other factors. It is proximately determined by the
common judgement or the common estimation of those who
are best acquainted with all the factors which determine social
value in the particular case. This is the famous theological
doctrine of the just price of commodities, and it only needs
to be properly understood to be appreciated as eminently
practical and equitable. The just price of a commodity is not
something which can be mathematically determined ; it admits
of a certain latitude, like everything that depends on a general
moral estimate. Theologians distinguish the highest, the
lowest, and the mean just price. The highest is that above
which the commodity in question is not commonly sold, the
lowest is that below which it is not commonly sold, and the
mean is between the two. Justice will be observed if the price
at which a thing is sold is not above the highest nor below the
lowest at which the thing sells at the time and in the place
in question. As a rule, market prices are just, because they
are settled according to the common estimate of buyers and
1 Sale of Goods Act, 1893, sec. 8.
330 ON CONTRACTS
sellers as to what are fair and reasonable prices under the
circumstances.
Here theologians usually discuss a number of questions
concerning the price of commodities in particular cases where
there is special difficulty. In the case of rare or single objects,
such as a first folio of Shakespeare, or a painting by a great
master, or a winner of the Derby, where there is no market
price, many theologians teach that no injustice is committed
whatever be the price received from a buyer who acts with full
freedom and knowledge. Fancy prices may be foolish, but
they are not unjust. No difficulty is made by theologians in
allowing one to sell at the current rate who has certain informa-
tion of an imminent fall in price. A merchant may also buy
things of value from uncivilized owners for trinkets. In the
place and among the people concerned there is equality of
value between merchandise and price. A seller is justified in
asking a higher price a price of affection the theologians call
it for what he cannot part with without more than ordinary
pangs. The seller may not, however, charge for some special
value in use which the thing sold has for the buyer. That
belongs to the buyer, not to the seller, who cannot therefore
sell it.
4. The following rules as to the transfer of property in the
goods sold are given in the Sale of Goods Act, 1893 :
Where there is a contract for the sale of unascertained goods
no property in the goods is transferred to the buyer unless and
until the goods are ascertained. Where there is a contract
for the sale of specific or ascertained goods the property in
them is transferred to the buyer at such time as the parties to
the contract intend it to be transferred.
For the purpose of ascertaining the intention of the parties
regard shall be had to the terms of the contract, the conduct
of the parties, and the circumstances of the case.
Unless a different intention appears, the following are rules
for ascertaining the intention of the parties as to the time at
which the property in the goods is to pass to the buyer :
RULE I. Where there is an unconditional contract for the
sale of specific goods, in a deliverable state, the property in
the goods passes to the buyer when the contract is made and
it is immaterial whether the time of payment or the time of
delivery, or both, be postponed.
RULE II. Where there is a contract for the sale of specific
goods and the seller is bound to do something to the goods,
for the purpose of putting them into a deliverable state, the
ON SALE 331
property does not pass until such thing is done and the buyer
has notice thereof.
RULE III. Where there is a contract for the sale of specific
goods in a deliverable state, but the seller is bound to weigh,
measure, test, or do some other act or thing with reference to
the goods for the purpose of ascertaining the price, the property
does not pass until such act or thing be done and the buyer
has notice thereof.
RULE IV. When goods are delivered to the buyer on approval
or " on sale or return," or other similar terms, the property
therein passes to the buyer : (a) When he signifies his approval
or acceptance to the seller or does any other act adopting the
transaction ; (6) if he does not signify his approval or acceptance
to the seller but retains the goods without giving notice of
rejection, then, if a time has been fixed for the return of
the goods, on the expiration of such time, and, if no time has
been fixed, on the expiration of a reasonable time. What is
a reasonable time is a question of fact.
RULE V. Where there is a contract for the sale of unascer-
tained or future goods by description, and goods of that
description and in a deliverable state are unconditionally
appropriated to the contract, either by the seller with the assent
of the buyer, or by the buyer with the assent of the seller, the
property in the goods thereupon passes to the buyer. Such
assent may be express or implied, and may be given either
before or after the appropriation is made. 1
Unless otherwise agreed, the goods remain at the seller's
risk until the property therein is transferred to the buyer ; but
when the property therein is transferred to the buyer, the goods
are at the buyer's risk, whether delivery has been made or not.
Provided that where delivery has been delayed through the
fault of either buyer or seller, the goods are at the risk of the
party in fault as regards any loss which might not have occurred
but for such fault.
5. As a general rule, the buyer acquires no better title to
goods than the seller had, but where goods are sold in market
overt, according to the usage of the market, the buyer acquires
a good title to the goods, provided he buys them in good faith
and without notice of any defect or want of title on the part
of the seller. 2
Market overt in the country is only held on the special
market-days provided for particular towns by charter or
prescription; but in London every day, except Sunday, is
Sale of Goods Act, 1893, sees. 16-18. 2 ibid., sec. 23.
332 ON CONTRACTS
market-day. The market-place or spot of ground set apart
for the sale of particular goods is also in the country the only
market overt ; but in the city of London every shop in which
goods are exposed publicly to sale is market overt, for such
things only as the owner professes to trade in. It is of the
essence of the custom that the sale should be an open and
public sale, so a sale in a salesroom and apart from the shop,
or at a wharf, is not within it. Nor is sale by sample, the
bulk sold not being exposed in the shop. Nor does the sale
of horses come within the rule of market overt.
When the seller of goods has a voidable title thereto, but
his title has not been avoided at the time of the sale, the buyer
acquires a good title to the goods, provided he buys them in
good faith and without notice of the seller's defect of title.
Where goods have been stolen and the offender is prosecuted
to conviction, the property in the goods so stolen revests in
the person who was the owner of the goods or his personal
representative, notwithstanding any intermediate dealing with
them, whether by sale in market overt or otherwise.
Notwithstanding any enactment to the contrary, where goods
have been obtained by fraud or other wrongful means not
amounting to larceny, the property in such goods shall not
revest in the person who was the owner of the goods, or his
personal representative, by reason only of the conviction of
the offender.
Where a person having sold goods continues or is in posses-
sion of the goods, or of the documents of title to the goods,
the delivery or transfer by that person, or by a mercantile
agent acting for him, of the goods or documents of title under
any sale, pledge, or other disposition thereof to any person
receiving the same in good faith, and without notice of the
previous sale, shall have the same effect as if the person making
the delivery or transfer were expressly authorised by the owner
of the goods to make the same. 1
6. In execution of the contract it is the duty of the seller
to deliver the goods, and of the buyer to accept and pay for
them, in accordance with the terms of the contract of sale.
Unless otherwise agreed, delivery of the goods and payment
of the price are concurrent conditions ; that is to say, the seller
must be ready and willing to give possession of the goods to
the buyer in exchange for the price, and the buyer must be
ready and willing to pay the price in exchange for possession
of the goods.
1 Sale of Goods Act, sees. 23-25.
ON SALE 333
Whether it is for the buyer to take possession of the goods,
or for the seller to send them to the buyer, is a question de-
pending in each case on the contract, express or implied,
between the parties. Apart from any such contract, express
or implied, the place of delivery is the seller's place of business,
if he have one, and if not, his residence, provided that if the
contract be for the sale of specific goods, which to the know-
ledge of the parties when the contract is made are in some
other place, then that place is the place of delivery.
Where, under the contract of sale, the seller is bound to
send the goods to the buyer, but no time for sending them is
fixed, the seller is bound to send them within a reasonable
time.
Unless otherwise agreed, the expenses of and incidental to
putting the goods into a deliverable state must be borne by
the seller.
Where the seller delivers to the buyer a quantity of goods
less than he contracted to sell, the buyer may reject them;
but if the buyer accepts the goods so delivered, he must pay
for them at the contract rate.
Where the seller delivers to the buyer a quantity of goods
larger than he contracted to sell, the buyer may accept the
goods included in the contract and reject the rest, or he may
reject the whole. If the buyer accepts the whole of the goods
so delivered, he must pay for them at the contract rate.
Where the seller delivers to the buyer the goods he con-
tracted to sell, mixed with goods of a different description not
included in the contract, the buyer may accept the goods
which are in accordance with the contract and reject the rest,
or he may reject the whole.
The provisions of this section are subject to any usage of
trade, special agreement, or course of dealing between the
parties. 1
Unless otherwise agreed, where goods are delivered to the
buyer and he refuses to accept them, having the right so to
do, he is not bound to return them to the seller, but it is suffi-
cient if he intimates to the seller that he refuses to accept
them. 2
Notwithstanding that the property in the goods may have
passed to the buyer, the unpaid seller of goods, as such, has
by implication of law (a) a lien on the goods or right to retain
them for the price while he is in possession of them; (b) in
case of the insolvency of the buyer, a right of stopping the
1 Sale of Goods Act, sees. 27-30. 2 ibid., sec. 36.
334 ON CONTRACTS
goods in transitu after he has parted with the possession of
them ; (c) a right of resale as limited by the Sale of Goods Act.
Where the property in goods has not passed to the buyer,
the unpaid seller has, in addition to his other remedies, a right
of withholding delivery similar to and coextensive with his rights
of lien and stoppage in transitu where the property has passed
to the buyer. 1
ARTICLE II
Sale of Real Property
1 . In this article we will give certain general notions on the
sale and purchase of real property, which is a very technical
subject in English law. Our brief summary is derived from
the Encyclopedia of the Laws of England, s.v. Vendor and
Purchaser.
In general, any owner of any kind of estate and interest in
land has power to sell it, and any person or corporate body
legally capable of owning land has power to purchase it. This
rule, however, is subject to the exceptions laid down above
concerning the capacity to enter into a contract and to many
others. Thus, by the Mortmain Act, 1888, a corporation has
no power to purchase land otherwise than under the authority
of a statute or of a licence from the Crown.
2. Besides the general conditions which are requisite for
the formation of any contract, a sale of real property must be
in writing signed by the party to be charged therewith; it is
to some extent uberrimae fidei, and it is subject to certain
special rules which are implied by law for the regulation of the
contract and the duties of the respective parties under it.
3. When a valid contract for the sale of land has been
entered into, its general effect on the legal position of the
parties may be summed up as follows: The moment there is
a valid contract for sale, the vendor becomes in equity a trustee
for the purchaser of the estate sold, and the beneficial owner-
ship passes to the purchaser, the vendor having a right to the
purchase money, a charge or lien on the estate for the security
of that purchase money, and a right to retain possession of the
estate until the purchase money is paid, in the absence of
express contract as to the time of delivering possession. As
from the date of the contract the property sold is at the risk of
the purchaser, who must bear all subsequent losses, and is
entitled to all subsequent gains.
1 Sale of Goods Act, sec. 39.
ON SALE 335
4. Under an open contract and in the absence of special
stipulations to the contrary, the duties of the parties as regards
completion may be summarized as follows:
(a) Duties of the Vendor. (i) He is bound to both show
and make a good title in accordance with the contract.
(2) Upon being paid the purchase money and any interest
upon it that may have become payable, the vendor is bound
to execute, and procure the execution by all other necessary
parties (if any) of, a proper deed of conveyance vesting the
legal and equitable estate in the purchaser. (3) He must, in
or concurrently with the conveyance, enter into proper
covenants for title and sometimes into certain other covenants.
(4) Upon completion he must hand over to the purchaser all
title-deeds in his possession or power. (5) Upon completion
possession of the property, if not already obtained, must be
given by the vendor to the purchaser. (6) He must do all
things necessary for completion within the time agreed upon,
if time is essential, or otherwise within a reasonable time.
(b) Duties of the Purchaser. (i) Correlatively with the first
duty of the vendor above mentioned, the purchaser is bound
to peruse the abstract when received, inspect the title-deeds
produced, and make all objections and requisitions in due
course. (2) He must prepare the conveyance and tender it
to the vendor for execution. (3) Upon completion he must
pay the persons properly entitled to receive it the purchase
money and any interest upon it which may have become
payable; and where equities or encumbrances exist of which
he has notice, he is, unless the necessary parties capable of
giving receipts concur, bound to see to the proper application
of the purchase money. (4) He must pay to the vendor all
proper costs and expenses incurred by the vendor, the liability
for which is by law imposed upon the purchaser. (5) He
must, upon completion, take possession of the property so
as to relieve the vendor from all future liabilities incident to
the ownership. (6) He must, like the vendor, do all things
necessary for completion within the time agreed upon, or,
if none, within a reasonable time.
Special rules for the alienation of Church property are
laid down in the Code, Canons 534, 1530-1534, 2347.
CHAPTER VI
ON SALE BY AUCTION
*
i. AUCTION is a sale of property, whether real or personal,
by which a person binds himself to transfer the ownership of
the same to the highest bidder according to the conditions of
sale. There are various methods in which the sale is con-
ducted, and descriptions of the property to be sold and the
conditions of sale are usually notified to the public by printed
particulars of sale or by catalogues, and by the auctioneer
himself. The bidding proceeds orderly, each bid being in the
nature of an offer, which may be revoked until the auctioneer
signifies his acceptance, usually by a stroke of his hammer.
By this a contract is concluded with the last bidder, and the
property becomes his. Ordinarily, however, the contract
cannot be enforced by English law unless there is some
memorandum of it in writing signed by the party to be charged
therewith, or by his agent in that behalf.
2. Such a method of sale is, of course, honest and lawful if
the conditions required either by the nature of the contract,
or by law, or by special arrangement, be duly observed. The
nature of the contract requires that, at any rate without notice,
the owner himself should not bid, nor any other person on his
behalf, and that the property should be knocked down to the
highest bidder even if the price obtained be less than its value.
The Sale of Goods Act, 1893, expressly provides that where
a sale by auction is not notified to be subject to a right to bid
on behalf of the seller, it shall not be lawful for the seller to
bid himself or to employ any person to bid at such sale, or
for the auctioneer knowingly to take any bid from the seller
or any such person. Any sale contravening this rule may be
treated as fraudulent by the buyer. 1
However, in the next subsection the same Act also provides
that a sale by auction may be notified to be subject to a reserved
or upset price, and a right to bid may also be reserved expressly
by or on behalf of the seller, and where a right to bid is ex-
pressly reserved, but not otherwise, the seller, or any one
person on his behalf, may bid at the auction.
1 Sale of Goods Act, 1893, sec. 58, subsec. (3),
336
ON SALE BY AUCTION 337
Similarly, if all those who are present at an auction conspire
together not to bid against each other, or if means are used
to hinder people from bidding, injustice is committed. An
agreement, however, between two persons not to bid against
each other, when there are other bidders present, is not unjust
or illegal, and knockouts, as they are called, are common, by
which persons agree that only one of them shall bid for any
particular article, and after the sale put up privately among
themselves the goods that each one has bought.
i,
23
CHAPTER VII
ON MONOPOLIES
i. A MONOPOLY in general is the exclusive right belonging to
one or to a certain number to sell some commodity. A legal
monopoly has its origin in the law, which sometimes reserves
to the Government the right to sell some commodity or service,
or grants the exclusive privilege of doing so to someone or to
a certain number. Thus, in some countries the Government
has a monopoly of salt or tobacco, as it has in England of the
postal telegraph service. Copyright and patent right are
private monopolies granted by law to an author or to the
inventor of a patent. A natural monopoly arises from one or
a few who band together and who are the owners of the sole
source of supply of some commodity. When one or more
capitalists obtain joint control over the sale of some com-
modity we have a capitalistic monopoly. The moral principles
which govern the exclusive right to sell are applicable also
to the exclusive right to buy, and we shall apply them to both
in this chapter.
2. A legal monopoly is lawful provided that it does not
militate against the common good. In England the Tudor
sovereigns abused their privilege of granting monopolies, and
the Parliament under James I made such grants illegal and
void. Copyright, however, patent right, and certain other
privileges of a monopolistic character, are recognized and
protected by English law.
A natural monopoly, too, is of course lawful, but if the
commodity or service which is thus monopolized is necessary
or very useful for the common good, natural equity prescribes
that the price demanded should be fair and reasonable, even
if it be not regulated by positive law. If the subject-matter
of the monopoly belongs to the class of non-necessaries and
luxuries, as, for example, a mine of diamonds or rubies of
special quality, it cannot be said that the price is fixed and
determined by natural conditions, and the owner will be
justified in taking any price that he can get without fraud or
misrepresentation.
Even capitalistic monopolies of commodities or services
338
ON MONOPOLIES 339
which are necessary or very useful to the community are not
morally wrong if the prices charged are fair and reasonable,
and if there is nothing reprehensible in the method of con-
ducting business. The public may derive considerable
advantages from these monopolies. They are capable of
effecting great savings in the costs of production, advertising,
distribution, and general management, and they may secure
a large return on their capital and at the same time sell
cheaply to consumers. They obviate, too, the wastes and the
recurring depressions in trade which follow from unlimited
competition.
3. Monopolies, however, are morally wrong when the prices
demanded for necessary or useful articles of consumption are
excessive, or when the methods of business are unjust, un-
charitable, or generally unlawful. The prices will be excessive
when much more than a fair return for the capital employed
is obtained, after all the costs of production and distribution
have been defrayed, and when as a natural consequence they
are higher than would rule if there were no monopoly. When
means are used to crush rivals in order to secure a monopoly,
when bribery of public officials is practised to obtain from
Government specially favourable laws or treatment, when
discriminating rates are obtained from railways and other
companies, when workmen are tyrannically and unjustly
treated, when prices of raw material are unduly depressed and
producers are robbed of a fair compensation for their toil and
trouble, and in general, when fraud or force is used to accom-
plish the end in view, the methods of business are immoral,
and monopolies which employ such methods are to be con-
demned.
If prices demanded by a monopoly are, in the estimation of
prudent men, higher than are fair and reasonable, injustice
is committed, and there is consequently an obligation to make
restitution to the buyers who have been robbed. If the prices
charged are not altogether unfair and unreasonable, but high,
and above what in the circumstances would be considered
moderate, there will be a sin committed against charity, in
that private advantage has been unduly pursued to the detri-
ment of the people, who have been compelled to pay higher
prices for the enrichment of the monopolists.
^ From^what has been said, it is clear that what are called
rings " and " corners " in wheat, cotton, and other such
commodities, are morally wrong, in that they cause the financial
rum of many people, and produce wide distress and instability
34 o ON CONTRACTS
of trade. Trusts, too, and combinations in trade are full of
danger for the community. They wield immense power, and
the temptations to abuse it, especially as a company has no
conscience, as the saying is, are too great for the common run
of business men. It is well that the Government should have
the right of examining and inspecting the affairs of such
bodies, and of applying the necessary remedies in case of
abuse.
CHAPTER VIII
ON BAILMENT
i . BAILMENT is a contract by which the possession of chattels
is delivered by one person (the bailor) to another person (the
bailee) either to be delivered by the bailee to a third person
or to be redelivered to the bailor when the purpose of the
bailment is at an end.
According to the common enumeration there are six kinds
of bailment depositum, commodatum, locatio et conductio,
vadium, locatio operis faciendi, and mandatum. Of these
depositum and mandatum are for the benefit of the bailor alone,
and the bailee is liable only for gross negligence in the per-
formance of his duty. Commodatum is for the sole benefit
of the bailee, who is therefore liable for even slight negligence.
The other kinds are for the benefit of both bailor and bailee,
and the bailee will be liable for ordinary neglect. The fore-
going degrees of negligence are required by law to make the
bailee liable, but by express agreement he may bind himself
to more or less care, and then he will be held liable accordingly.
Moreover, when a bailee possesses any special skill, the omis-
sion to use that skill in the execution of the trust committed
to him will be imputed as gross negligence even if he derived
no benefit from the bailment.
2. A deposit is a bare naked bailment of goods delivered
by one man to another to keep for the use of the bailor without
reward. The depositary in general is not allowed to use the
deposit, for it is given to him to keep for nothing ; he is bound
to exercise the same care of the deposit as he does of his own
goods, but he will only be answerable for gross neglect.
3. A mandate is the delivery of goods or chattels to some-
body who is to carry them or do something about them gratis.
The mandatary, like the depositary, is liable only for gross
neglect, but if his situation or profession is such as to imply
skill, the failure to use that skill will be imputable as gross
neglect.
4. A loan is the lending of goods or chattels to another to
be used by him gratis. As the borrower obtains the use of
the thing lent for nothing he will be answerable for even slight
342 ON CONTRACTS
negligence, and he is not justified in using it for a longer time
or for other purposes than was agreed upon. He is not
responsible for reasonable wear and tear. The lender on his
side is responsible for defects in the chattel with reference to
the use for which he knows the loan is accepted, of which he
is aware, and owing to which directly the borrower is injured.
5. In the contract of hiring where goods are lent to a person
in consideration of payment, the hirer is bound to use ordinary
care of them such as a prudent man would take of his own
goods, and he will be responsible for ordinary negligence.
6. Pawn or pledge is a contract by which goods or chattels
are delivered to another to be security to him for money
borrowed of him by the bailor. The pawnee must use ordinary
diligence in the custody of the pledge which he is not permitted
to make use of except when its keep entails expense, as in the
case of a horse, and then the pawnee may make reasonable use
of it so as to indemnify himself for its keep.
The pawnee may recover his debt by giving notice to the
pawner that he will sell the subject of the pledge, or he may
sue for his debt, or if he pleases he may adopt both remedies.
A pledge differs from a lien in that this only gives the right
to retain property, and from a mortgage of personal estate
which passes the actual property in the goods to the mortgagee.
Pawnbrokers form a special kind of pawnees, but although
transactions dealing with loans above ten pounds are governed
by the common law, loans of ten pounds and less are subject
to the Pawnbrokers Act, 1872. By this Act every pledge
must be redeemed within twelve months from the day of
pawning, with seven additional days of grace. If a pledge
is not redeemed within that time, and the amount for which
it was pledged does not exceed ten shillings, it becomes the
absolute property of the pawnbroker; if it was pledged for
above ten shillings, it may be redeemed until actual sale, and
such sale must be by public auction, and the surplus after
the costs of the sale and the amount of the pledge and interest
must be accounted for.
The pawnbroker is made liable for loss in case of fire,
against which he may protect himself by insurance, and he
may treat the person who produces the pawn-ticket as entitled
to redeem the pledge.
7. The last species of bailment is a contract by which goods
or chattels are delivered to be carried, or something is to be
done about them for a reward to be paid by the bailor to the
bailee. With regard to the liability of such bailees a distinc-
ON BAILMENT 343
tion is made between persons exercising a public employment,
such as public carriers, and private persons. The former are
responsible for all losses except such as happen through the
act of God and the King's enemies. The latter are only
bound to exercise the reasonable care which is to be expected
from a skilled storekeeper acquainted with the risks to be
apprehended ; and this care must be shown not only in obviating
the risks, but in taking all proper measures for the safety of
the goods or of a portion of them when the risks have occurred.
There are special laws which govern the liability of railway
companies and innkeepers.
CHAPTER IX
ON PRINCIPAL AND AGENT
i. A CONTRACT of agency arises where one person, called the
principal, authorizes another, called the agent, who accepts
the charge, to represent him, or act on his behalf, and under-
takes to be answerable for what that other does within the
scope of his authority.
This contract, like others, requires the mutual consent of
the parties to it, and that consent may be express or implied
in their actions and course of dealing. Thus not only is a
wife the agent of her husband for the purpose of supplying
herself with necessaries, but a woman with whom a man
cohabits occupies the same position as long as the cohabitation
continues. Indeed, agency may be constituted by ratification
of acts done on behalf of another even without previous
authorization. No special formality is required in appointing
an agent except in the case of a corporation, or where the
agent is authorized to execute a deed on behalf of the principal,
in which case the appointment must be by deed.
Whatever a person may do by himself he may appoint an
agent to do for him, quifacitper aliumfacit per se; and anyone
of sound mind may be appointed an agent, even one who, like
a minor, cannot enter into legally binding contracts for himself.
An agent cannot delegate his authority to another, for delegatus
non potest subdelegare.
Agency is of different kinds, universal, general, or special.
A universal agent is empowered to do any acts on behalf of his
principal ; a general agent is empowered to do all acts in some
particular trade, business, or employment; a special agent is
authorized to do some particular act for the principal; a del
credere agent engages to be responsible to his principal for the
purchase money of goods sold by him.
2. The rights and duties of principal and agent between
themselves are settled by their intention as manifested or
implied in the contract which they have concluded. In
default of express or implied agreements to the contrary the
duties of the agent implied by law are : to perform the contract
of agency; to observe the limits of his authority and the
344
ON PRINCIPAL AND AGENT 345
instructions given him by the principal) as also the customs
and usages of the business in which he is employed; in all
things left to his discretion to act with the most perfect good
faith in the interest and for the benefit of his principal; to
exercise due skill, care, and diligence, according to the nature
of the business entrusted to him and the terms of the agency ;
to keep the money and property of his principal separate from
his own; to pay over to the principal all moneys received to
his use, and to account to him for all secret profits and com-
missions. No agent is allowed to enter into any transactions
in which he has a personal interest at variance with his duty
to his principal or from which he obtains any personal benefit
or profit, except with the consent of the principal; and any
secret commissions or profits which he acquires are considered
as received for the principal's use. This rule of law is just,
and it should be adhered to when the agent obtains a fair and
equitable remuneration for his services from the principal.
It is obvious that the agent may keep secret commissions
which he receives from others with the express or implied
consent of his principal, and he may be excused in conscience
if he retains for his own use the fruits of special and extra-
ordinary diligence which he was not bound by his contract to
employ, together with gifts and presents made to him person-
ally to secure or retain his custom, provided that the interests
of his principal in nowise suffer in consequence.
The principal on his part is bound to pay a fair remunera-
tion to the agent for his services, to accept the obligations
lawfully entered into by the agent in his behalf, and to in-
demnify him for all expenses and losses that he has incurred
in the course of his agency.
3. Even if a universal or general agent exceeds his authority
in a particular instance, yet the principal will be liable if the
act came within the agent's ordinary authority. This is not
the case with a special agent, for in this case it is the duty of
those who contract with him to satisfy themselves as to the
extent of his powers.
As a general rule, the agent incurs no personal liability, for
he acts on behalf of his principal, who alone is bound. Con-
trary to the general rule, the agent will be liable when he
conceals his principal, or when he acts without authority, or
when he exceeds that authority and fraudulently misrepresents
its extent, or when he specially binds himself, though acting
as an agent. When the fact of agency is not known, or when
the agency is known but the principal is not disclosed, the
342 ON CONTRACTS
negligence, and he is not justified in using it for a longer time
or for other purposes than was agreed upon. He is not
responsible for reasonable wear and tear. The lender on his
side is responsible for defects in the chattel with reference to
the use for which he knows the loan is accepted, of which he
is aware, and owing to which directly the borrower is injured.
5. In the contract of hiring where goods are lent to a person
in consideration of payment, the hirer is bound to use ordinary
care of them such as a prudent man would take of his own
goods, and he will be responsible for ordinary negligence.
6. Pawn or pledge is a contract by which goods or chattels
are delivered to another to be security to him for money
borrowed of him by the bailor. The pawnee must use ordinary
diligence in the custody of the pledge which he is not permitted
to make use of except when its keep entails expense, as in the
case of a horse, and then the pawnee may make reasonable use
of it so as to indemnify himself for its keep.
The pawnee may recover his debt by giving notice to the
pawner that he will sell the subject of the pledge, or he may
sue for his debt, or if he pleases he may adopt both remedies.
A pledge differs from a lien in that this only gives the right
to retain property, and from a mortgage of personal estate
which passes the actual property in the goods to the mortgagee.
Pawnbrokers form a special kind of pawnees, but although
transactions dealing with loans above ten pounds are governed
by the common law, loans of ten pounds and less are subject
to the Pawnbrokers Act, 1872. By this Act every pledge
must be redeemed within twelve months from the day of
pawning, with seven additional days of grace. If a pledge
is not redeemed within that time, and the amount for which
it was pledged does not exceed ten shillings, it becomes the
absolute property of the pawnbroker; if it was pledged for
above ten shillings, it may be redeemed until actual sale, and
such sale must be by public auction, and the surplus after
the costs of the sale and the amount of the pledge and interest
must be accounted for.
The pawnbroker is made liable for loss in case of fire,
against which he may protect himself by insurance, and he
may treat the person who produces the pawn-ticket as entitled
to redeem the pledge.
7. The last species of bailment is a contract by which goods
or chattels are delivered to be carried, or something is to be
done about them for a reward to be paid by the bailor to the
bailee. With regard to the liability of such bailees a distinc-
ON BAILMENT 343
tion is made between persons exercising a public employment,
such as public carriers, and private persons. The former are
responsible for all losses except such as happen through the
act of God and the King's enemies. The latter are only
bound to exercise the reasonable care which is to be expected
from a skilled storekeeper acquainted with the risks to be
apprehended ; and this care must be shown not only in obviating
the risks, but in taking all proper measures for the safety of
the goods or of a portion of them when the risks have occurred.
There are special laws which govern the liability of railway
companies and innkeepers.
CHAPTER IX
ON PRINCIPAL AND AGENT
i. A CONTRACT of agency arises where one person, called the
principal, authorizes another, called the agent, who accepts
the charge, to represent him, or act on his behalf, and under-
takes to be answerable for what that other does within the
scope of his authority.
This contract, like others, requires the mutual consent of
the parties to it, and that consent may be express or implied
in their actions and course of dealing. Thus not only is a
wife the agent of her husband for the purpose of supplying
herself with necessaries, but a woman with whom a man
cohabits occupies the same position as long as the cohabitation
continues. Indeed, agency may be constituted by ratification
of acts done on behalf of another even without previous
authorization. No special formality is required in appointing
an agent except in the case of a corporation, or where the
agent is authorized to execute a deed on behalf of the principal,
in which case the appointment must be by deed.
Whatever a person may do by himself he may appoint an
agent to do for him, quifacitper aliumfacit per se; and anyone
of sound mind may be appointed an agent, even one who, like
a minor, cannot enter into legally binding contracts for himself.
An agent cannot delegate his authority to another, for delegatus
non potest subdelegare.
Agency is of different kinds, universal, general, or special.
A universal agent is empowered to do any acts on behalf of his
principal ; a general agent is empowered to do all acts in some
particular trade, business, or employment; a special agent is
authorized to do some particular act for the principal; a del
credere agent engages to be responsible to his principal for the
purchase money of goods sold by him.
2. The rights and duties of principal and agent between
themselves are settled by their intention as manifested or
implied in the contract which they have concluded. In
default of express or implied agreements to the contrary the
duties of the agent implied by law are : to perform the contract
of agency; to observe the limits of his authority and the
344
ON PRINCIPAL AND AGENT 345
instructions given him by the principal) as also the customs
and usages of the business in which he is employed; in all
things left to his discretion to act with the most perfect good
faith in the interest and for the benefit of his principal; to
exercise due skill, care, and diligence, according to the nature
of the business entrusted to him and the terms of the agency ;
to keep the money and property of his principal separate from
his own; to pay over to the principal all moneys received to
his use, and to account to him for all secret profits and com-
missions. No agent is allowed to enter into any transactions
in which he has a personal interest at variance with his duty
to his principal or from which he obtains any personal benefit
or profit, except with the consent of the principal; and any
secret commissions or profits which he acquires are considered
as received for the principal's use. This rule of law is just,
and it should be adhered to when the agent obtains a fair and
equitable remuneration for his services from the principal.
It is obvious that the agent may keep secret commissions
which he receives from others with the express or implied
consent of his principal, and he may be excused in conscience
if he retains for his own use the fruits of special and extra-
ordinary diligence which he was not bound by his contract to
employ, together with gifts and presents made to him person-
ally to secure or retain his custom, provided that the interests
of his principal in nowise suffer in consequence.
The principal on his part is bound to pay a fair remunera-
tion to the agent for his services, to accept the obligations
lawfully entered into by the agent in his behalf, and to in-
demnify him for all expenses and losses that he has incurred
in the course of his agency.
3. Even if a universal or general agent exceeds his authority
in a particular instance, yet the principal will be liable if the
act came within the agent's ordinary authority. This is not
the case with a special agent, for in this case it is the duty of
those who contract with him to satisfy themselves as to the
extent of his powers.
As a general rule, the agent incurs no personal liability, for
he acts on behalf of his principal, who alone is bound. Con-
trary to the general rule, the agent will be liable when he
conceals his principal, or when he acts without authority, or
when he exceeds that authority and fraudulently misrepresents
its extent, or when he specially binds himself, though acting
as an agent. When the fact of agency is not known, or when
the agency is known but the principal is not disclosed, the
346 ON CONTRACTS
principal, on being discovered, is held liable as well as the
agent. In law, but not in conscience, the principal is liable
for the fraud and wrong committed by the agent within the
limits of his authority even without the sanction of the
principal.
4. A contract of agency is determined by the death of the
principal, by the revocation by the principal of the agent's
authority, by the agent's renunciation of office with the prin-
cipal's consent, by the principal's bankruptcy, by the effluxion
of time, and by the fulfilment of the object for which the
agency was created.
CHAPTER X
ON PARTNERSHIP
i. PARTNERSHIP is defined to be the relation which subsists
between persons carrying on a business in common with a
view to profit. Business here includes every trade, occupa-
tion, or profession. The partners collectively are called a
firm, and they carry on business under the firm name.
In general, all persons are capable of entering into partner-
ship, and no special formality is required for the purpose; it
may be done by word of mouth, or inferred from the conduct
of the parties. By English law not more than ten persons
may form a partnership for carrying on a banking business,
and not more than twenty for other purposes.
2. Every member of a firm is an agent of the firm and of
the other members for doing any act which is necessary for
the carrying on of the business of the firm in the usual way.
The partners may indeed agree among themselves to restrict
this power with reference to one or more of their members,
and this agreement will be upheld and will excuse the firm
from liability for the acts of those members against the claims
of all who had notice of the agreement. Unless otherwise
provided by the partnership articles, any member as agent of
the firm has implied authority to receive and give receipts for
debts due to the firm, to draw cheques on the firm 's bankers in
the firm name, to purchase on the credit of the firm goods
required for carrying on its business in the usual way, to sell
the goods of the firm, to engage servants for the business of
the firm, and to borrow money on its credit. In order that
the firm may be liable for these and other acts of a member,
it is necessary that they should have been done by him in the
firm's name as agent, not as principal and in his own name.
As a principal is liable for the fraud and wrongdoing of
his agent in the course of his agency, so is the firm liable for
the fraud and wrongs done by a member in the ordinary course
of the business of the firm. The members of the firm are
jointly liable for the debts and obligations incurred by it, and
the property of a deceased member is liable also severally, but
not until the separate debts of the deceased have been paid.
347
348 ON CONTRACTS
3. The relations of the partners between themselves may
be determined by special agreement, but in the absence of
such special agreement every partner is entitled to share
equally in the profits of the business, and he must contribute
equally to its losses. This remains true in the absence of
agreement to the contrary even if the partners contributed
unequal shares to the capital of the firm. Every member has
a right to take part in the business of the firm, to express his
views about the conduct of its business, and no change may
be made without all being consulted. In case of disagreement,
the majority decides. Partners are bound to observe the
utmost good faith in their dealings with one another, to work
for the benefit of the firm, and in the conduct of the partner-
ship business they may not obtain private advantage at the
firm's expense.
4. A partnership may be dissolved by effluxion of time, by
mutual consent, by the death of a partner, by the bankruptcy
of a partner, by a judgement of the Chancery division of the
High Court of Justice which may be obtained on several
grounds. After dissolution, the authority of each partner to
bind the firm ceases, except in so far as is necessary to wind up
the affairs of the firm.
CHAPTER XI
ON LEASES
i. A LEASE is a contract transferring a right to the possession
and enjoyment of real property usually made in consideration
of the payment of a periodical compensation called rent.
A lease may be for life, or for a fixed period, or from year
to year, or at will or sufferance. It is provided by the statute
of frauds that "all leases, estates, interests of freehold, or
terms of years, or any uncertain interest of, in, to or out of,
any messuages, manors, lands, tenements, or hereditaments
made or created by livery and seisin only, or by parole, and
not put in writing, and signed by the parties so making or
creating the same, or their agents thereunto lawfully authorized
by writing, shall have the force and effect of leases or estates
at will only, and shall not, either in law or equity, be deemed
or taken to have any other or greater force or effect, any con-
sideration for making any such parole leases or estates, or any
former law or usage to the contrary notwithstanding. Except,
nevertheless, all leases not exceeding the term of three years
from the making thereof, whereupon the rent reserved to the
landlord during such term shall amount unto two third parts
at least of the full improved value of the thing demised."
So that a lease by parole can only be made when the period
does not exceed three years and the rent is at least two-thirds
of the value. Furthermore, by the 8 & 9 Victoria, c. 106,
every lease required by law to be in writing, and assignments
of leases, are void at law unless made by deed. It is also
provided by the Statute of Frauds that any agreement for a
lease for however short a period must be in writing.
Although a lease, which by law should be in writing and
is not, has by the statute the effect of only an estate at will,
yet if a tenant enters and pays rent under such a lease, it may
serve as a tenancy from year to year. If a tenant holds over
after the expiration of his lease and continues to pay a yearly
rent, he will hold under the terms of the lease as far as they
are applicable to the new tenancy from year to year.
A yearly tenant must give and is entitled to a reasonable
notice to quit, which has been held to be six months, ending
349
350 ON CONTRACTS
at the period at which his tenancy commenced. A year's
notice is required when the tenancy is held under the Agri-
cultural Holdings Act, 1883. To determine a monthly or a
weekly tenancy a notice of a month or a week respectively
should be given.
2. The tenant is always bound to use the premises leased
to him in a tenantlike or husbandlike manner. In leases for
a longer period it is usual to covenant as to whether repairs
shall be done by landlord or by tenant. In tenancies from
year to year the tenant is under no obligation to make sub-
stantial repairs in the absence of express agreement to that
effect, nor is he bound to make good accidental damage by fire
or other cause, nor ordinary wear and tear ; but he must repair
losses caused by his own negligence, and he must keep the
premises wind and water tight. The general rule is that all
rates and taxes are to be paid by the tenant; property tax,
land tax, and tithes are exceptions, and are paid by the land-
lord. Fixtures, or things affixed to the freehold by the tenant,
at common law became the property of the landlord, according
to the maxim, quidquid plantatur solo, solo cedit. The common
law rule, however, has been much mitigated, and now, in
general, fixtures erected for the purposes of trade, ornament,
or domestic use, and also agricultural fixtures, may be removed
by a tenant. In certain cases, before doing this, due notice
must be given to the landlord.
The landlord has a right to enter and seize goods belonging
to the tenant in payment of rent which is due to him but which
has not been paid.
CHAPTER XII
ON INSURANCE
i. THERE are three different types of this contract marine,
fire, and life insurance. Marine and fire insurance are con-
tracts of indemnity by which the insurer undertakes to make
good any loss suffered by the insured through the happening
of some accident, in consideration of the payment of a fixed
sum at once or at periodical intervals. On the other hand,
in a contract of life insurance the insurer undertakes to pay a
given sum to another upon the happening of a particular
event contingent upon the duration of human life in considera-
tion of the immediate payment of a smaller sum or certain
equivalent periodical payments. The particulars of the con-
tract are set forth in a formal document called the policy, but
the contract is made so as to bind the parties on the payment
by the insured of the premium i.e., the money charged or an
instalment thereof.
Usually insurance business is conducted by companies
which frequently effect reinsurance with other companies, so
that losses are spread over greater numbers and are more
easily borne. In marine insurance individuals called under-
writers frequently contract to indemnify the insured by sub-
scribing the policy and putting opposite to their name the
amount to which they will be personally liable in case of loss.
A man may effect an insurance with many companies, but
as marine and fire insurance are contracts of indemnity, the
insurer cannot get more than is sufficient to cover the loss,
and if one company has paid the whole of this, it will be able
to recover proportionate sums from the other companies with
which the party was insured. Any person may insure his
own life to any amount he thinks fit by paying proportionate
premiums, but no one can insure the life of another unless he
have a pecuniary interest in that life, and only to the extent
of that interest. A wife has such an interest in her husband's
life, and may effect an insurance on it for her own benefit.
Marine and life insurance policies may be assigned to others,
but notice of assignment must be given to the party bound by
the policy.
3Si
353 ON CONTRACTS
2. Contracts of insurance are uberrimae fidei, and therefore
require that all circumstances that are material to the contract
should be made known to the insurer in order to enable him
to come to a sound judgement as to the risks and the merits
of the case. Questions are proposed to one who desires to
effect an insurance, to which truthful answers must be given.
Warranties and conditions, express and implied, are also part
of the agreement. If the questions in the proposal are answered
falsely, or if the warranties or conditions are not fulfilled, or
if any material circumstance is not disclosed when it should
be to the insurer, the latter may void the contract. It is diffi-
cult to say when, according to law, the contract is null and
void so as to confer no rights in the foregoing circumstances
even before the insurer has used his right to avoid the contract.
In conscience it would seem that we may adopt the distinction
here between what theologians call substantial and accidental
mistake. That will be substantial to the contract which would
have prevented the insurance being effected at all if it had
been known; if it would not have prevented the insurance
being effected but only varied its terms, it will be accidental.
A substantial defect in the contract will make it null and void
so as to transfer no rights at all; accidental defects will leave
the contract valid, but there may be an obligation to supply
the defect, as, e.g., by paying a larger premium corresponding
to the greater risk or more advanced age. A usual condition
is that the policy of life insurance is avoided if the insured
should die by his own hand. The purpose of this condition
is to prevent a man gaining advantage by his own felonious act.
So that if no advantage would accrue to the party, the policy
may be saved in the absence of express condition to the con-
trary, as also if the insured committed suicide while of un-
sound mind.
If the premiums are not regularly paid at the proper time,
the policy lapses, and the paid-up premiums are forfeited to
the insurer. In such cases the policy may sometimes be
revived on comparatively easy terms.
CHAPTER XIII
ON GAMING AND WAGERING CONTRACTS
i. IN this chapter we will treat of certain contracts which
depend for their effect of profit or loss upon some uncertain
event.
A lottery is a distribution of prizes by lot or chance. Those
who take part in a lottery ordinarily pay down a smaller sum
of money in consideration for the chance of obtaining a larger
sum or something of greater value, but it may happen that
they lose by the transaction. The event is settled by the
casting or drawing of lots in some form or other. English
municipal law now prohibits lotteries where the distribution
of prizes depends on mere chance, not on art or skill. The
prohibition does not affect art unions carrying on business
under a royal charter or under a constitution and rules
approved by the Privy Council ; but it does affect distributions
of prizes on art union principles by persons other than art
unions. However, inasmuch as a lottery is nothing more than
the purchase of an uncertain chance, it is not necessarily
unjust or in any way contrary to the natural law. If there is
no fraud connected with the drawing of lots or the distribution
of the prizes, and if the sum paid by those who take part in
the lottery is to some extent proportionate to the chance of
winning a prize and to its value, a lottery will be lawful as far
as conscience is concerned, for the municipal law in these
matters is penal.
2. Gaming is playing at any game, sport, or pastime for
money or anything of value which is staked on the result of
the game, so that it is lost or won according to the success or
failure of the person who staked it.
Clerics are forbidden, as we shall see, to play at games of
pure chance with scandal to others and loss of their own time.
English law also makes all gaming contracts null and void so
that they cannot be enforced in English courts of justice.
But here we consider the question not as affected by positive
law, ecclesiastical or civil, but as it is in itself. Is gaming in
itself morally wrong ?
Apart from abuse, to play games of skill or even of pure
* 353 23
354 ON CONTRACTS
chance for a stake is not immoral. I may spend my money
in moderation on recreation, or I may make a present of it
to others if I choose. There is nothing immoral in agreeing
to hand over a sum of money if I am beaten in a game either
of skill or of chance. This perfectly lawful action will, how-
ever, become unlawful if one of the parties is compelled to
play against his will, or if cheating and fraud are practised
in the game, or if there is no chance of success on the part of
one of the players (unless he knows this and freely consents
to play in spite of it), or if the parties have not the money
which they stake or at any rate not the free disposal of it on
account of its being required to pay their debts or to support
themselves and their families.
Moreover, although gaming in itself and under the con-
ditions which have just been laid down is not immoral, yet it
is a dangerous pastime for many, and easily leads to abuse,
sin, and ruin. Especially is this the case when gambling is
carried on in houses kept for the purpose, where all kinds of
bad characters congregate. The keeping of such dens of
iniquity is rightly punished by the law.
3. Wagering or betting is the making of a contract on an
unascertained event, past or future, by which the parties are
to gain or lose, according as the uncertainty is determined
one way or the other.
Wagering contracts in general are not enforceable in English
courts of law, although there are some exceptions to the rule,
but here we consider the matter from the point of view of
conscience.
To make a bet is not sinful provided that the subject-matter
of the wager is not sinful nor an incentive to sin, provided
that the event is really uncertain for both parties, and provided
that both understand the bet in the same way and are prepared
to stand by the event and pay in case of loss. Even if one
of the parties is certain as to the truth of the matter in question
and he makes this known to the other, if the latter chooses
to persist in his contention and stakes his money, the other
will be justified in taking it.
What was said above about gambling is applicable also to
betting. Although it is not sinful to stake a moderate sum
of money of which one has the free disposal on some unascer-
tained event under the conditions laid down above, yet a
strong and dangerous habit may easily be formed by indulgence
in the practice, and then sin, misery, and ruin to self and others
are not far off.
ON GAMING AND WAGERING CONTRACTS 355
There are certain modes of gambling which are practised
now on money and produce exchanges. Dealings in " futures "
and " options " and " time bargains " are for the most part
merely speculative transactions, and do not differ essentially
from betting as to what will be the price of stock or of some
commodity at a future date. " Rigging the market " and
similar devices are means employed by operators to influence
the market in their own favour. These means are, of course,
unjust, and besides inflicting loss on competitors, they do
great harm to outsiders by disturbing the natural prices of
commodities, and not infrequently produce irreparable and
far-reaching ruin.
BOOK VIII
ON THE COMMANDMENTS OF THE
CHURCH
WE saw in the book on Laws that the Church has received
power from God to make laws which bind all her children,
and that she alone has authority to regulate all matters per-
taining to the worship of God and the salvation of souls. The
Catholic Church has exercised the power entrusted to her
and imposed certain laws and precepts on the faithful. Ac-
cording to the Catechism the chief of these are six in
number :
1. To keep the Sundays and holy days of obligation holy,
by hearing Mass and resting from servile work.
2. To keep the days of fasting and abstinence appointed by
the Church.
3. To go to confession at least once a year.
4. To receive the Blessed Sacrament at least once a year,
and that at Easter or thereabouts.
5. To contribute to the support of our pastors.
6. Not to marry within certain degrees of kindred, nor to
solemnize marriage at the forbidden times.
The last of these will be best explained when we come
to treat of marriage; the other five will form the subject of
the following chapters.
CHAPTER I
ON KEEPING CERTAIN DAYS HOLY
i. WHAT pertains to the obligation of hearing Mass and
abstaining from servile work on Sundays and holy days of
obligation has been already explained under the Third Com-
mandment of the Decalogue. It only remains to add a few
observations to what was there laid down.
357
358 ON THE COMMANDMENTS OF THE CHURCH
Before Urban VIII issued his Bull Universa, September 13,
1642, various feasts were kept as of obligation in different
countries. For the purpose of introducing greater uniformity,
Urban VIII drew up a list of feasts which were everywhere
to be observed and besides which no others might be observed
without the sanction of the Pope. Besides all the Sundays of
the year, the list contained the following feasts: Christmas
Day, the Circumcision, Epiphany, Resurrection and two
following days, the Ascension, Whit Sunday and two following
days, the Holy Trinity, Corpus Christi, Finding of the Cross,
the Purification, Annunciation, Assumption, and Nativity of
the Blessed Virgin ; the Dedication of St Michael, the Nativity
of St John the Baptist, SS Peter and Paul, St Andrew, St
James, St John, St Thomas, SS Philip and James, St Bar-
tholomew, St Matthew, SS Simon and Jude, St Matthias;
St Stephen, St Sylvester, St Joseph, St Anne, the feast of All
Saints, and one of the principal patrons in each kingdom or
province, and another principal patron in each city, town, or
village, where such are venerated.
In most countries the number of these feasts has been
greatly reduced, and in England they have been reduced to
eight by decrees of the Sacred Congregation of Propaganda
dated March 9, 1777, and May 17, 1830. Those eight are:
Christmas Day, the Circumcision or New Year's Day, the
Epiphany, the Ascension of our Lord, Corpus Christi, SS
Peter and Paul, the Assumption of our Lady, and All
Saints. The suppressed feasts are still observed as days of
devotion.
As in England we had no patrons such as those whose feast
was to be observed according to the Bull of Urban VIII, by
a decree dated May 24, 1863, Pius IX granted permission for
the name of St George to be inserted in the prayer A Cunctis
at Mass, and for a commemoration of St George to be made
in place of that of the patron among the suffrages of the saints
in the Office. By a decree S.R.C. (December 2, 1891 [n. 3758]),
regulars may add the name of their saintly founder as
well. In Ireland the feast of St Patrick is celebrated as the
feast of the patron and as a day of obligation in addition to
those observed in England. In the United States the following
are the holy days of obligation: Christmas Day, the Circum-
cision, the Ascension, the Assumption, the Immaculate Con-
ception of our Lady, and All Saints.
Canon 1247 is as follows: " The festival days of obligation
in the Church universal are these only : Each and all Sundays,
ON KEEPING CERTAIN DAYS HOLY 359
the feasts of the Nativity, Circumcision, Epiphany, Ascension,
and Corpus Christi, of the Immaculate Conception and
Assumption of Blessed Mary Mother of God, of St Joseph
her Spouse, of the Blessed Apostles Peter and Paul, and finally
of All Saints."
The feasts of the Immaculate Conception and of St Joseph
have not so far been introduced in England.
CHAPTER II
ON FASTING AND ABSTINENCE
r. THERE are various reasons why the Church bids Catholics
to fast and abstain from flesh meat on certain days. By these
means we more easily keep our lustful appetites in due sub-
jection and we do penance for our sins. There are certain
devils, which, as our Lord taught us, are only cast out by
prayer and fasting. Moreover, by denying and curbing our
appetites we exercise ourselves in the virtue of temperance,
and, like soldiers on parade, we accustom our lower nature
to obey the command of reason, so that it may not betray us
when we are in presence of the enemy in time of temptation.
2. Considerable changes were introduced into the law of
fasting and abstinence by the new code. According to Canon
1250:
" The law of abstinence forbids the eating of flesh meat
and of soup made from flesh meat, but not eggs, milk, cheese
(lacticinia), nor any condiments even from the fat of animals."
The flesh of animals that are born on land and that breathe
is forbidden, as also soups made from this flesh and extract of
meat. Fish, oysters, turtle, crab are not forbidden, and in
some places certain aquatic birds are allowed by custom.
Suet is classed as flesh meat, but the rendered fat of animals,
butter, milk, cheese, and eggs are allowed.
3 . This precept binds under pain of grave sin, but a violation
of it would not be a mortal sin unless an appreciable quantity
of unlawful food were taken. Theologians are not agreed on
what quantity is necessary to constitute grave matter, but, in the
opinion of some, two ounces would be necessary and sufficient.
4. All Catholics who have come to the use of reason are as
a general rule subject to the precept of abstinence as to other
positive laws of the Church. However, inasmuch as positive
laws do not bind when they could not be observed without
relatively serious inconvenience, those who are sick, or are
recovering from illness, or those who are in weak health and
cannot take abstinence fare, are excused from observing this
precept, and may eat meat on days of abstinence. Children,
too, of negligent Catholic parents who do not observe the
360
ON FASTING AND ABSTINENCE 361
law, Catholic servants in b goted Protestant families who can-
not get such food as the C mrch allows on days of abstinence,
and must fast unless they eat meat which is put before them,
may lawfully do so. Dispensations also from the obligation
of abstaining may for good reason be obtained from the Bishop
or from the priest.
The superiors of Religious Orders have the same powers
as Bishops with regard to their own religious subjects.
Ordinarily these can only dispense in particular cases or
families, but on account of some great concourse of people or
of public health, Ordinaries can now dispense in the law both
of fasting and abstinence (Can. 1245, sec. 2, 3).
5. According to Canon 1251 : " The law of fasting prescribes
that only one full meal be taken in the day; but it does not
forbid the taking of some food in the morning and in the
evening, nevertheless the approved custom of the place must
be kept with regard to the quantity and quality of food. Nor
is it forbidden to mix flesh meat and fish in the same meal,
nor to change the evening collation with dinner."
The law of fasting, then, prescribes that only one full meal
may be taken in the day, and that after twelve o'clock midday.
Solid food, not drink, is limited by the law of fasting, but
very nutritious liquids, such as milk, soup, thick chocolate,
are classed as food. Custom sanctions the taking of about
two ounces of dry bread with tea, coffee, or thin chocolate
at breakfast, and about eight ounces of lighter sorts of food
in the evening at collation. If it is preferred the collation
may be taken after midday and the full meal in the evening.
According to Canon 1252 : " The law of abstinence alone is
to be observed on every Friday.
The law of abstinence and fasting also is to be observed on
Ash Wednesday, on the Fridays and Saturdays of Lent, and on
the Wednesdays, Fridays, and Saturdays of Ember Week,
on the vigils of Whit Sunday, the Assumption, All Saints, and
Christmas Day.
The law of fasting alone is to be observed on the other days
of Lent. On Sundays or on feasts of obligation the law of
abstinence, or of abstinence and fasting, or of fasting only,
ceases, except on the feast during Lent, and the vigils are not
anticipated; it also ceases on Holy Saturday after midday."
The Holy See has dispensed English and Scotch Catholics
from abstinence except during Lent, on the Saturdays of Ember
Week, and on those vigils which immediately precede or
follow Friday or another day of abstinence.
358 ON THE COMMANDMENTS OF THE CHURCH
Before Urban VIII issued his Bull Universa, September 13,
1642, various feasts were kept as of obligation in different
countries. For the purpose of introducing greater uniformity,
Urban VIII drew up a list of feasts which were everywhere
to be observed and besides which no others might be observed
without the sanction of the Pope. Besides all the Sundays of
the year, the list contained the following feasts: Christmas
Day, the Circumcision, Epiphany, Resurrection and two
following days, the Ascension, Whit Sunday and two following
days, the Holy Trinity, Corpus Christi, Finding of the Cross,
the Purification, Annunciation, Assumption, and Nativity of
the Blessed Virgin ; the Dedication of St Michael, the Nativity
of St John the Baptist, SS Peter and Paul, St Andrew, St
James, St John, St Thomas, SS Philip and James, St Bar-
tholomew, St Matthew, SS Simon and Jude, St Matthias;
St Stephen, St Sylvester, St Joseph, St Anne, the feast of All
Saints, and one of the principal patrons in each kingdom or
province, and another principal patron in each city, town, or
village, where such are venerated.
In most countries the number of these feasts has been
greatly reduced, and in England they have been reduced to
eight by decrees of the Sacred Congregation of Propaganda
dated March 9, 1777, and May 17, 1830. Those eight are:
Christmas Day, the Circumcision or New Year's Day, the
Epiphany, the Ascension of our Lord, Corpus Christi, SS
Peter and Paul, the Assumption of our Lady, and All
Saints. The suppressed feasts are still observed as days of
devotion.
As in England we had no patrons such as those whose feast
was to be observed according to the Bull of Urban VIII, by
a decree dated May 24, 1863, Pius IX granted permission for
the name of St George to be inserted in the prayer A Cunctis
at Mass, and for a commemoration of St George to be made
in place of that of the patron among the suffrages of the saints
in the Office. By a decree S.R.C. (December 2, 1891 [n. 3758]),
regulars may add the name of their saintly founder as
well. In Ireland the feast of St Patrick is celebrated as the
feast of the patron and as a day of obligation in addition to
those observed in England. In the United States the following
are the holy days of obligation: Christmas Day, the Circum-
cision, the Ascension, the Assumption, the Immaculate Con-
ception of our Lady, and All Saints.
Canon 1247 * s as follows: " The festival days of obligation
in the Church universal are these only : Each and all Sundays,
ON KEEPING CERTAIN DAYS HOLY 359
the feasts of the Nativity, Circumcision, Epiphany, Ascension,
and Corpus Christi, of the Immaculate Conception and
Assumption of Blessed Mary Mother of God, of St Joseph
her Spouse, of the Blessed Apostles Peter and Paul, and finally
of All Saints."
The feasts of the Immaculate Conception and of St Joseph
have not so far been introduced in England.
CHAPTER II
ON FASTING AND ABSTINENCE
i. THERE are various reasons why the Church bids Catholics
to fast and abstain from flesh meat on certain days. By these
means we more easily keep our lustful appetites in due sub-
jection and we do penance for our sins. There are certain
devils, which, as our Lord taught us, are only cast out by
prayer and fasting. Moreover, by denying and curbing our
appetites we exercise ourselves in the virtue of temperance,
and, like soldiers on parade, we accustom our lower nature
to obey the command of reason, so that it may not betray us
when we are in presence of the enemy in time of temptation.
2. Considerable changes were introduced into the law of
fasting and abstinence by the new code. According to Canon
1250:
" The law of abstinence forbids the eating of flesh meat
and of soup made from flesh meat, but not eggs, milk, cheese
(lacticmia), nor any condiments even from the fat of animals."
The flesh of animals that are born on land and that breathe
is forbidden, as also soups made from this flesh and extract of
meat. Fish, oysters, turtle, crab are not forbidden, and in
some places certain aquatic birds are allowed by custom.
Suet is classed as flesh meat, but the rendered fat of animals,
butter, milk, cheese, and eggs are allowed.
3. This precept binds under pain of grave sin, but a violation
of it would not be a mortal sin unless an appreciable quantity
of unlawful food were taken. Theologians are not agreed on
what quantity is necessary to constitute grave matter, but, in the
opinion of some, two ounces would be necessary and sufficient.
4. All Catholics who have come to the use of reason are as
a general rule subject to the precept of abstinence as to other
positive laws of the Church. However, inasmuch as positive
laws do not bind when they could not be observed without
relatively serious inconvenience, those who are sick, or are
recovering from illness, or those who are in weak health and
cannot take abstinence fare, are excused from observing this
precept, and may eat meat on days of abstinence. Children,
too, of negligent Catholic parents who do not observe the
360
ON FASTING AND ABSTINENCE 361
law, Catholic servants in b goted Protestant families who can-
not get such food as the C mrch allows on days of abstinence,
and must fast unless they eat meat which is put before them,
may lawfully do so. Dispensations also from the obligation
of abstaining may for good reason be obtained from the Bishop
or from the priest.
The superiors of Religious Orders have the same powers
as Bishops with regard to their own religious subjects.
Ordinarily these can only dispense in particular cases or
families, but on account of some great concourse of people or
of public health, Ordinaries can now dispense in the law both
of fasting and abstinence (Can. 1245, sec. 2, 3).
5. According to Canon 1251 : " The law of fasting prescribes
that only one full meal be taken in the day; but it does not
forbid the taking of some food in the morning and in the
evening, nevertheless the approved custom of the place must
be kept with regard to the quantity and quality of food. Nor
is it forbidden to mix flesh meat and fish in the same meal,
nor to change the evening collation with dinner."
The law of fasting, then, prescribes that only one full meal
may be taken in the day, and that after twelve o'clock midday.
Solid food, not drink, is limited by the law of fasting, but
very nutritious liquids, such as milk, soup, thick chocolate,
are classed as food. Custom sanctions the taking of about
two ounces of dry bread with tea, coffee, or thin chocolate
at breakfast, and about eight ounces of lighter sorts of food
in the evening at collation. If it is preferred the collation
may be taken after midday and the full meal in the evening.
According to Canon 1252: " The law of abstinence alone is
to be observed on every Friday.
The law of abstinence and fasting also is to be observed on
Ash Wednesday, on the Fridays and Saturdays of Lent, and on
the Wednesdays, Fridays, and Saturdays of Ember Week,
on the vigils of Whit Sunday, the Assumption, All Saints, and
Christmas Day.
The law of fasting alone is to be observed on the other days
of Lent. On Sundays or on feasts of obligation the law of
abstinence, or of abstinence and fasting, or of fasting only,
ceases, except on the feast during Lent, and the vigils are not
anticipated; it also ceases on Holy Saturday after midday."
The Holy See has dispensed English and Scotch Catholics
rrom abstinence except during Lent, on the Saturdays of Ember
Week, and on those vigils which immediately precede or
follow Friday or another day of abstinence.
362 ON THE COMMANDMENTS OF THE CHURCH
6. It is special to the law of fasting that it only binds the
faithful after they have attained the age of twenty- one until
they enter upon their sixtieth year. It binds under pain of
grievous sin, which may be committed not only by taking
more than one full meal in the day according to what has
just been said, but also by taking food at frequent intervals in
small quantities, for thus the total amount would be consider-
able. When one who is bound to fast has already taken two
full meals, he has broken his fast, and the law no longer binds
him. Whereas the law of abstinence is broken, and sin is
committed, as often as the prohibited act is done.
7. Though all who have reached the age of twenty- one are
per se bound to fast, yet as a matter of fact many are excused
on the ground of impossibility, work of importance which
cannot be omitted without serious inconvenience and which
cannot be done if fasting is observed, and dispensation.
Not only hard bodily labour in the fields, mines, workshops,
or mills, but severe mental work such as teaching, continual
preaching, or hearing confessions, excuses from the precept
of fasting. The sick, convalescents, and those in delicate
health are also excused. Even though the difficulty of fasting
and at the same time of doing one's work is sometimes not
sufficient of itself to excuse one from fasting, it will be sufficient
for obtaining a dispensation, which may be given not only by
the Pope, but by the Bishop, one's religious superior, or by
the parish priest.
CHAPTER III
ON ANNUAL CONFESSION
As the Council of Trent teaches, there is a divine law which
prescribes that all who fall into grievous sin after receiving
Baptism should confess such sin to a priest and receive absolu-
tion for it from him. This divine; precept is contained in the
institution of the sacrament of Penance, and will best be
explained when we come to treat of that sacrament. Here
we have to do with a positive ecclesiastical law which sup-
poses the divine law, but further determines it according to
time and the person to whom the confession is to be made.
The divine law does not determine any precise time for
making the confession nor does it limit the choice of
confessor. This was done by the Fourth Lateran Council,
c. 21 : " Let all the faithful of both sexes after they have
come to years of discretion faithfully confess all their sins
in private at least once a year to their own priest, and do
their best to perform the penance which he shall enjoin
them."
It is the common opinion of theologians that this law
only affects those who have fallen into mortal sin, so that
although venial sin may be confessed and affords sufficient
matter for sacramental absolution, yet there is no law,
human or divine, which imposes any obligation on the
faithful in general to confess venial sins. The divine law
does not do this, as the Council of Trent explains (sess. 14,
c. 5), and the Lateran law only determines the divine
law.
One's own priest, according to the modern discipline of
the Church, is any priest who has faculties for hearing con-
fessions in the place where they are made. To satisfy the
precept it is not sufficient merely to make one's confession;
it must be made fruitfully, so as to merit absolution and
reconciliation with God. 1
No special time within the year is mentioned by the council,
and various methods of reckoning the year would satisfy its
1 Prop. 14, condemned by Alexander VII.
363
364 ON THE COMMANDMENTS OF THE CHURCH
requirements; but as Easter time is assigned for the annual
Communion which is also prescribed, in practice the two
precepts are fulfilled together within the time appointed
for the Easter duties. If one has neglected to go to the
sacraments within the prescribed time, he is not free for a
further term, but he should go as soon as he can (Can. 906,
907).
CHAPTER IV
THE EASTER COMMUNION
i . THERE is also a divine precept to receive Holy Communion :
" Except you eat the flesh of the Son of man and drink his
blood you shall not have life in you." l But no special time was
assigned by our Lord for the fulfilment of this precept ; he left
all such matters to be determined by the Church. The Fourth
Council of the Lateran, therefore, made the universal law that all
the faithful, after coming to years of discretion, should reverently
receive the holy Eucharist at least at Easter, unless it be deemed
advisable to abstain for a time for some reasonable cause. 2
2. Canon 859 of the new code repeats the words of the
Lateran Council and interprets the words " years of dis-
cretion " as " coming to the use of reason," so that children
become subject to this law after completing their seventh
year. This obligation, as far as it affects those under the age of
puberty, falls chiefly on those who have care of them that
is, on their parents, guardians, confessor, teachers, and parish
priest (Can. 860).
The Easter Communion should be made during the fort-
night from Palm Sunday to Low Sunday, but local Ordinaries
can anticipate the time from the fourth Sunday of Lent or
prolong it to Trinity Sunday.
The faithful are to be exhorted to fulfil this precept in their
own parish church, and if they fulfil it in another parish they
should inform their parish priest.
In England the time for fulfilling the Easter duties is still
from Ash Wednesday to Low Sunday.
In the United States the time for fulfilling the Easter precept
is from the first Sunday in Lent till Trinity Sunday; in Ireland
it extends from Ash Wednesday to the octave day of the feast
of SS Peter and Paul.
This precept is not fulfilled by a sacrilegious Communion,
and if it has not been complied with at the proper time the
obligation still remains, and should be discharged as soon as
the occasion offers.
Other matters concerning Holy Communion will be treated
when we come to the Sacraments.
1 John vi 54. 2 Can- 2I
365
CHAPTER V
ON SUPPORTING ONE'S PASTORS
i. " KNOW you not," says St Paul, " that they who work in
the holy place eat the things that are of the holy place; and
they that serve the altar partake with the altar ? So also the
Lord ordained that they who preach the gospel should live
by the gospel." 1 As, then, there was special provision made
by God for the support of the priests and the maintenance of
religion under the Old Law, so under the New Law our Lord
commanded that his ministers should be supported by those
to whom they ministered. The faithful, then, are bound by
divine precept to contribute according to their means to the
support of their pastors.
The method of fulfilling this duty has varied at different
times; nowadays, at least in English-speaking countries, the
offerings of the faithful are almost the only source of church
revenue, as they were in the first ages of Christianity. The
Church urges this divine precept and further determines it
either by universal law or by provincial and diocesan regu-
lations. 2
2. Ministers of religion have a right in justice to decent
support, for from the fact that they are put by lawful authority
in spiritual charge of a parish or mission, the people under
their care are bound by an implicit contract to support them,
just as citizens are bound to support temporal rulers, magis-
trates, and officials. 3
The obligation, then, to support one's pastors is grave, but
it is difficult to determine when mortal sin is committed in
particular cases by failing to comply with this duty. Much
depends on the degree of necessity in which a pastor is placed,
and on the means of the parishioner. The sacraments and
ministrations of the Church should never be refused to the
1 i Cor. ix 13, 14.
2 Cf. i West., d. 23, nn. 4, 5 ; 2 West., d. 8; 3 Plen. Baltim., tit. 9;
can. 1496.
3 St Thomas, Summa, 2-2, q. 87, a. i.
366
ON SUPPORTING ONE'S PASTORS 367
poor who cannot pay the usual fee, nor more especially is the
priest justified in refusing the consolations of religion to
dying people on the ground that they neglected the duty of
supporting their pastors during life. The priest is bound
by other ties to his flock than by the hope of earthly
reward.
END OF VOL. I.
iffl
CTfoe University of Chicago
^libraries
A MANUAL OF MORAL THEOLOGY
A ; MiNUAL- OF
J
FOR ENGLISH-SPEAKING COUNTRIES
REV. THOMAS SLATER, SJ.
N *
VOL II.
FIFTH AND REVISED EDITION
NEW YORK, CINCINNATI, CHICAGO
BENZIGER BROTHERS
PRINTERS TO THE HOLY APOSTOLIC SEE
1925
NIHIL OBSTAT:
H. DAVIS, SJ.
IMPRIMI POTEST:
GULIELMUS BODKIN, S.J.
NIHIL OBSTAT:
J. R. McKEE, C.O.,
Censor deputatus.
IMPRIMATUR :
EDM. CAN. SURMONT,
Vicarius generate.
WESTMON ASTBHI i ,
Die 50 fanuarii, 1935.
Madt and Printed in Great Britain
765
752
CONTENTS
BOOK I
DUTIES ATTACHED TO PARTICULAR STATES AND
OFFICES
j
PART I. DUTIES OF CERTAIN LAYMEN
PAGE
Chapter I. Duties of Judges . . . *
Chapter II. Duties of Advocates ..... 5
Chapter III. Prosecutors, Defendants, and Witnesses . . 7
Chapter IV. Medical Men 9
PART II. SPECIAL DUTIES OF CLERICS
Chapter I. Holiness of Life . . . . . .11
Chapter II. Celibacy of the Clergy . . . . .13
Chapter III. Clerical Dress . . . . . 15
Chapter IV. Divine Office i?
Chapter V. Things Forbidden to Clerics .... 22
Chapter VI. Benefices 25
Chapter VII. Special Duties of Bishops .... 27
Chapter VIII. Duties of Canons 29
Chapter IX. Duties of Parish Priests ..... 30
Chapter X. Priests without Special Charge . . -34
PART III. SPECIAL DUTIES OF RELIGIOUS
Chapter I. Nature of the Religious State . . . -37
Chapter II. Entrance into Religion ..... 40
Chapter III. Religious Profession ..... 43
Chapter IV. Religious Poverty 44
Chapter V. Vow of Chastity 49
Chapter VI. Vow of Obedience . . . . . 51
VI
CONTENTS
Chapter I.
Chapter II.
Chapter III.
Section I.
Section II.
Section III.
Section IV.
Chapter IV.
BOOK II
THE SACRAMENTS IN GENERAL
The Nature of a Sacrament ....
The Matter and Form of the Sacraments .
The Minister of the Sacraments
The Attention and Intention of the Minister .
The Faith and Holiness of the Minister
The Duty of Administering the Sacraments
The Duty of Refusing the Sacraments to the
Unworthy .......
The Recipient of the Sacraments
PAGE
53
57
61
61
64
66
67
BOOK III
BAPTISM
Chapter I. The Nature of Baptism .
Chapter II. The Matter and Form of Baptism
Chapter III. The Minister of Baptism .
Chapter IV. The Sponsors ....
Chapter V. Who May be Baptized
75
77
78
81
83
BOOK IV
CONFIRMATION
Chapter I. The Matter of Confirmation
Chapter II. The Minister of Confirmation
Chapter III. The Subject of Confirmation
87
89
90
BOOK V
THE HOLY EUCHARIST
PART I. THE SACRAMENT OF THE EUCHARIST
Chapter I.
Chapter II.
Chapter III.
Chapter IV.
Chapter V.
Article I.
Article II.
Section I.
Section II.
The Nature and Effects of the Eucharist . . 91
The Matter and Form of the Eucharist . . 93
The Minister of the Eucharist ... 96
The Reservation of the Eucharist ... 98
The Subject of the Eucharist .... 100
The Necessity of the Eucharist . . .100
The Dispositions Requisite for the Reception of
the Eucharist . . . . . . 102
The Dispositions of the Soul . . . .103
The Dispositions of the Body . . . .103
CONTENTS
VII
PART II. THE EUCHARIST AS A SACRIFICE
Chapter I. The Nature of the Sacrifice of the Mass
Chapter II. The Application of Mass
Chapter III, The Obligation of Applying Mass .
Chapter IV. The Time for Saying Mass
Chapter V. Where Mass may be Said
Chapter VI. Requisites for Saying Mass
Chapter VII. The Rubrics of the Missal
PAGE
I O6
HO
112
117
119
131
122
Chapter I.
Chapter II.
Chapter III.
Section I.
Section II.
Chapter IV.
Chapter V.
Chapter VI.
Chapter VII.
Chapter VIII.
Chapter IX.
Chapter X.
Chapter XI.
Chapter XII.
Section I.
Section II.
Section III.
Section IV.
Chapter XIII.
Chapter XIV.
BOOK VI
THE SACRAMENT OF PENANCE
The Nature of Penance . . . . .125
The Matter of Penance 128
On Contrition . . . . . . 132
The Nature of Contrition .... 132
The Purpose of Amendment . . . .136
Confession . . . . . . .138
Satisfaction . . . . . . 144
The Form of Penance . . . . . 147
The Minister of Penance . . . 149
Jurisdiction of the Minister of Penance . .150
The Confessors of Religious . . . 153
Reserved Cases . . . . . .156
De Abusu Sacramenti Poenitentiae . . .161
The Duties of Confessors in the Confessional . 165
The Confessor as Spiritual Father . . .165
The Confessor as Physician of Souls . .166
The Confessor as Counsellor . . . .168
The Confessor as Judge . . . . .170
Mistakes made in Hearing Confessions . . 172
The Seal of Confession . . . . . 174
BOOK VII
EXTREME UNCTION
Chapter I. The Nature of Extreme Unction
Chapter II. The Minister of Extreme Unction
Chapter III. The Recipient of Extreme Unction
179
181
182
VM1
CONTENTS
BOOK VIII
THE SACRAMENT OF ORDERS
Chapter I. The Nature of Orders
Chapter II. The Minister of Orders
Chapter III. The Subject of Orders
PAKE
1 86
Chapter I.
Chapter II.
Chapter III.
Chapter IV.
Chapter V.
Chapter VI.
Chapter VII.
Chapter VIII.
Chapter IX.
Chapter X.
Article I.
Article II.
Article III.
Article IV.
Article V.
Article VI.
Article VII.
Article VIII.
Article IX.
Article X.
Section I.
Section II.
Article XL
Section I.
Section II.
Section III.
Article XII.
Article XIII.
Article XIV.
Article XV.
Chapter XI.
Chapter XII.
Chapter XIII.
Chapter XIV.
BOOK IX
MARRIAGE
Betrothal 189
The Effects of Betrothal . . . .193
Dissolution of Betrothal . . . 194
Banns of Marriage . . . . 197
The Marriage Contract .... 200
Minister, Matter, and Form of Matrimony . 204
The Properties of Marriage . . . 206
The Impediments of Marriage in General . 210
The Prohibitory Impediments . . .212
The Diriment Impediments . . .215
Impotence . . . . . . 215
Age 216
Previous Marriage . . . . .216
Consanguinity . . . , . .218
Affinity . . . . . . . . 220
Spiritual Relationship ..... 221
Adoption ....... 221
Public Propriety . . . . . . . 222
Solemn Vows and Sacred Orders . . . 222
Difference of Religion . . . . . . 223
Mixed Marriages . . . . . 224
Difference of Religion .... 225
Crime . . . . . . . 226
Adultery with Promise of Marriage . . 226
Murder of a Consort ..... 227
Adultery and Murder . . . . . 228
Error, Slavery, Imbecility .... 228
Violence and Fear . . . . . 229
Abduction . . . . . .231
Clandestinity . . . . . .232
Doubtful Impediments . . . . . 236
Dispensations from Diriment Impediments . 238
Revalidation of Marriage ... 246
De Debito Conjugali ..... 248
CONTENTS ix
BOOK X
CENSURES
PART I. CENSURES IN GENERAL
PAGE
Chapter I. The Nature of an Ecclesiastical Censure . . 253
Chapter II. Absolution of Censures ..... 257
PART II. DIFFERENT KINDS OF CENSURES
Chapter I. Excommunication 259
Chapter II. Suspension ....... 262
Chapter III. Interdict 264
Chapter IV. Ecclesiastical Penalties 266
PART III. SPECIAL CENSURES
Chapter I. Special Excommunications .... 268
Chapter II. Special Suspensions 283
Chapter HI. Special Interdicts 285
BOOK XI
IRREGULARITIES
Chapter I. Irregularity in General 287
Chapter II. Irregularities from Defect ..... 289
Chapter HI Irregularities arising from Crime . . . 291
Chapter IV. Removal of Irregularities 292
BOOK XII
INDULGENCES
Chapter I. The Nature of an Indulgence . . . .293
Chapter II. Conditions Required for Gaining Indulgences . 296
Chapter III. The Jubilee 301
APPENDIX
A Short History of Moral Theology 305
Bibliography 339
INDEX
, Alphabetical Index to Volumes I and II . . . . 343
BOOK I
ON THE DUTIES ATTACHED TO PARTICULAR
STATES AND OFFICES
IN the preceding volume we have treated of the duties which
are incumbent on all men, or at any rate on all Catholics, by
the natural, divine, and ecclesiastical law. Some special
duties, however, arise from the nature of the state in which
one is placed or of the office which one holds. Thus a judge
or a doctor has as such certain special obligations as well as
the cleric or the religious. The confessor should know all the
obligations of his penitents, and so moral theologians usually
treat in this place of the special duties of judges, doctors, clerics,
and religious. We will follow their example in this Book and
treat in the first part of the special obligations of certain laymen,
in the second of those of clerics, and finally of those of religious.
PART I
ON THE DUTIES OF CERTAIN LAYMEN
CHAPTER I
ON THE DUTIES OF JUDGES
i. A JUDGE is defined to be a public person appointed by
lawful authority to apply the laws to the settling of disputes
between litigants and to the punishment of criminals.
He is said to be a public person because he is appointed by
public authority, not chosen like an arbitrator by the litigants
themselves, and, moreover, he is guided in his official capacity
not by his private knowledge and ideas but by the evidence
given in the case and by the laws which he administers. Case
law, or judge-made law, in English jurisprudence, is no excep-
tion to this rule, for it is but the authentic interpretation and
application of the common and statute law to concrete cases
made in court by the judges of the superior courts.
- XX* . f
2 DUTIES ATTACHED TO STATES AND OFFICES
A cause in which the private rights of the litigants are to
be adjudicated upon is called a civil case or action ; if the cause
is one in which an offender is tried for the commission of a
crime it is called a criminal case or action.
2. By his very position and the nature of his office a judge
is bound to pass a just sentence according to law in the cases
brought before him, and so he must possess the requisite
qualifications for this and set about it in the right manner.
He must have a competent knowledge of the law which is to
be his guide and which-he is called upon to apply, and he must
use at least ordinary diligence to get at the merits of the case
before him. He must not allow his judgement to be influenced
by such improper motives as fear or favour ; his sentence must
be dictated by a sense of even-handed justice. He must
observe the rules of judicial procedure applicable to the case,
and he must have the requisite authority or jurisdiction for
dealing with it.
If in any of these points the judge is culpably at fault, he
sins against justice and is bound to make good the damage
which he causes. Moreover, inasmuch as judges ordinarily
take an oath of office, he will also sin against the sanctity of
his oath. A judge who should allow himself to be bribed
to give an unjust sentence would not only be bound in con-
science to repair the injustice done, but he would be liable to
severe punishment for his offence. Even if he were to take
a bribe for delivering a just sentence, he is bound in conscience
to restore what he received. For, as his office binds him in
justice to give sentence according to the merits of the case,
such a service is no ground for special reward or payment, nor
a just title for retaining a special reward or payment if he has
received any.
3. The judge, as we have seen, must pass sentence according
to the evidence before the court, not according to his own
private knowledge or views. He may know privately that
an accused man is guilty, but he must not condemn him unless
his guilt has been proved by the evidence. But what if the
judge knows for certain that an accused man is innocent, and
yet, according to the evidence available, he has been proved
guilty ? In such a case as this the judge must, of course,
use all the means in his power to bring out the innocence of
the accused^ party, or remit the case to another court. But
supposing that he has done all in his power to avoid condemn-
ing the innocent man, and nevertheless the jury have found
him guilty, and by law it only remains for the judge to pass
ON THE DUTIES OF JUDGES 3
sentence according to the verdict. Is he allowed to do so ?
This question was disputed among theologians. Some, with
St Thomas, taught that he might condemn the innocent man,
for the witnesses were then guilty of injustice, not the judge,
who did his duty in passing sentence according to law. Others
denied that this is lawful, for to condemn the innocent, especi-
ally if there is question of a death sentence, is intrinsically
wrong. Others distinguished, and taught that it is indeed
unlawful to condemn an innocent man to death even when, by
judicial process, he has been proved to all appearances guilty,
but that when there is question of a fine or imprisonment
which may be suffered without sin, the judge may pass sentence
according to the law, for this is for the public good. Practically,
therefore, according to the principles of English jurisprudence
the judge may lawfully pass sentence even of death in such
a case, but he is bound afterward, by making representations
to the proper authority, to do what he can to clear the innocent
party.
When the evidence in a criminal trial is not conclusive, the
defendant must not be condemned, for a man is presumed to
be innocent until he has been proved conclusively to be guilty.
In a civil action, when the rights of the parties are not
certain, but only probable, the judge is bound to adjudicate
in favour of him who has the more probable right, taking into
account possession and all the other circumstances in the case.
If there is equal probability on either side, the parties should
come to a compromise, or, as some hold, the judge may decide
in favour of either party.
4. The judge is bound to pass sentence according to law,
for this is presumed to be just. It may, however, happen that
particular laws are unjust, as when the seal of confession is not
respected or divorce is permitted. May a Catholic judge pass
sentence in accordance with such laws as these ?
The judge may sometimes obtain permission to pass sen-
tence according to a law which is unjust merely because it
is against the laws and rights of the Church. In order to
make the position of Catholic judges tenable the Church will
sometimes cede her rights in such cases or grant jurisdiction
to try a case which of itself belongs to the ecclesiastical courts.
Thus Cardinal Gasparri deduces from a decree of the Holy
Office, December 19, 1860, that jurisdiction has been granted
to judges in England to try cases where there is question of
judicial separation of married people. 1
1 Gasparri, De Matrim. 2, n. 1165.
4 DUTIES ATTACHED TO STATES AND OFFICES
If the law commands what is contrary to the natural or
divine law as, for example, to give evidence as to what has
been declared in confession it is intrinsically wrong to obey
such a law, and no Catholic judge may apply it.
If the unjust law only imposes a fine or imprisonment,
some theologians maintain that even then it may not be applied
by a Catholic judge. Others, however, hold that for grave
reason as, for example, if no Catholic could otherwise accept
the office of judge sentence may be passed according to such
a law. The person unjustly condemned must patiently submit
for the public good, especially as he would not escape even if
Catholic judges refused to execute the law.
The unjust sentence of a judge imposes no obligation in
conscience, and of course the aggrieved party may have recourse
to all available remedies which the law allows for redress.
If none is available the public good will usually require patient
submission to the wrong. If there is a doubt about the justice
of a sentence, presumption favours the judge, and obedience
must be yielded, as in the case of a just sentence, which has
the force of the law which it applies.
5. What has been said concerning the moral obligations of
judges is applicable in due proportion to those who have
similar functions, such as arbitrators, referees, and jurymen.
An arbitrator differs from a judge in that he is chosen by the
parties to the dispute to settle their claims. If the submission
to arbitration and the decision of the arbitrator be in writing,
the sentence is final, and will be upheld by English courts
unless it is evidently corrupt or obtained by unlawful means. 1
Referees are officials or experts to whom the court entrusts
some special question for inquiry or decision, and sometimes
the cause itself, if it be complicated and not suitable for trial in
the ordinary way. They are bound to act according to the
terms of their commission and the rules drawn up for their
guidance. The report or award of a referee, unless set aside
by the court, has the force of a jury's verdict.
A jury is a body of men selected and sworn to inquire into
certain matters of fact, and to declare the truth upon evidence
to be laid before them. They are therefore bound to form
the best judgement in their power as to the facts of the case
laid before them, and truthfully and fearlessly to give their
verdict. If any one of them has any private knowledge of the
facts of the case, he is not precluded from communicating it to
the others, and he should do this if justice or charity require it.
1 Cf. Can. 1930.
CHAPTER II
ON THE DUTIES OF ADVOCATES
i. AN advocate is one who undertakes to assist litigants by
his advice and help and by pleading their case before the
judge. For the purposes of moral theology we may neglect
the technical differences between barristers and solicitors in
English law.
As the advocate acts in the name of his client he may in
general do what his client is allowed to do, and he must not
do what it would be wrong for his client to do. He may not
undertake a cause which is manifestly unjust ; otherwise he will
be guilty of sin, and bound to make restitution for all the
damage that he causes. If in the course of the trial it becomes
manifest that his client's cause is a bad one, he must inform
his client of the fact and refuse to proceed with the case. How-
ever, it is not necessary that the advocate should be certain
that his client is right ; it will be sufficient if his cause is probably
just, for it may be expected that the doubtful rights of the
parties will become clear in the course of the trial. In a
criminal action the advocate may always defend the accused
by lawful means whether he be guilty or not. If he is guilty,
the defence of his advocate cannot do any serious harm, and
will at least help toward the merciful administration of justice.
The prosecution of an accused person may not be undertaken
unless his guilt is practically certain, for otherwise there will
be danger of injuring the character of an innocent person and
of exposing him to vexation without just cause.
From the decree of the Holy Office, December 19, 1860,
in answer to the Bishop of Southwark, it is clear that in England
an advocate may undertake a case where there is question of
judicial separation between husband and wife. Even in an
action for divorce in a civil court he may defend the action
against the plaintiff. If the marriage has already been pro-
nounced null and void by competent ecclesiastical authority,
a Catholic advocate may impugn its validity in the civil courts.
Moreover, for just reason, as, for example, to obtain a varia-
tion in the marriage settlement, or to prevent the necessity
of having to maintain a bastard child, a Catholic lawyer may
5
6 DUTIES ATTACHED TO STATES AND OFFICES
petition for a divorce in the civil court, not with the intention
of enabling his client to marry again while his spouse is still
living, but with a view to obtaining the civil effects of
divorce in the civil tribunal. This opinion at any rate is
defended as probable by many good theologians. The reason
is because marriage is neither contracted nor dissolved before
the civil authority; in the formalities prescribed for marriage
by civil law there is only question of the civil authority taking
cognizance of who are married, and of the civil effects which
flow therefrom.
2. With reference to the duties of the advocate toward his
client, he must, of course, have the requisite knowledge and
skill to undertake the case according to the reasonable expecta-
tions of his client, and he must exercise due care and diligence
in the execution of the duty which he has undertaken. If in
these respects he is culpably negligent, he will be guilty of
injustice and bound to make restitution for the harm he does.
Furthermore, if his client has no case, and no chance of success
in the suit, the advocate must make this known to him; he
must avoid useless delays, keep the strictest faith with his
client, and use only just means to gain his cause.
English law will not enable a barrister to institute legal
proceedings for the recovery of his honorarium if it is withheld.
This, however, does not prevent the obligations of a contract
existing between an advocate and his client, so that as the
former is bound in justice to do his part for the latter, so is
the client bound in justice to recompense his lawyer according
to the terms which were explicitly or implicitly agreed upon.
With regard to solicitors the law sufficiently provides against
extortion in the matter of fees.
By the general law of charity a lawyer should be prepared
to give his assistance for the love of God to the poor who
cannot pay the usual fees. Indeed, if an accused person has
no one to defend him, the judge will usually request someone
to undertake the office.
English solicitors frequently fulfil the functions of notaries
public, and as such receive all acts and contracts which must
or are wished to be clothed with an authentic form, confer on
such acts the required authenticity, establish their date, and
prepare and attest instruments going abroad.
CHAPTER III
ON PROSECUTORS, DEFENDANTS, AND WITNESSES
i. THERE are other persons connected with the administration
of justice besides judges and lawyers, and they have special
moral obligations of their own. A word must be said about
the moral duties of prosecutors, defendants, and witnesses.
By canon law the accusation of delinquents in an ecclesiastical
criminal trial is reserved to the Promotor of Justice, but as a
general rule anyone who has full use of his senses may prosecute
according to English law. Nobody should undertake a pro-
secution when greater evil than good would follow from it,
or when there is not moral certainty as to the guilt of the
accused. Otherwise it may be done for the sake of the public
good, and there may be an obligation to do it, as when one's
office compels one to undertake the task, or the defence of
the innocent or the public good require it, or a precept of
obedience command it. Thus by ecclesiastical law heretics
and priests guilty of solicitation in the sacred tribunal are to
be denounced to the Ordinary.
2. The defendant in a criminal trial is not himself subjected
to examination according to English law, unless he offers
himself voluntarily to give evidence, and then he may be
examined like a witness. In canon law the accused is ex-
amined, and the question arises whether he is bound to tell
the truth. According to Canon 1743 : " The parties are bound
to answer the judge when he interrogates them legitimately,
and to tell the truth unless there is question of a crime com-
mitted by themselves."
The defendant may in self-defence make known the secret
crime of a witness against him, if it really conduces to his
defence; but of course he may never impute false crimes to
anybody. A criminal may not defend himself against lawful
arrest, for that would be to resist lawful authority, but he is
not compelled to deliver himself up to justice, and it is not
a sin to escape from justice if he can do so without violence.
The law prescribes that he shall be kept in durance, not that
he shall voluntarily remain in custody. A criminal lawfully
condemned to death is not obliged to save his life by escape
7
8 DUTIES ATTACHED TO STATES AND OFFICES
or other means if he can do so ; he should submit to the execu-
tion of the sentence passed upon him, and may do so meri-
toriously.
3. Charity or obedience may impose an obligation to give
evidence in a court of justice. If serious harm can be pre-
vented by offering one's self as a witness, there will as a rule
be an obligation to do so, and obedience imposes the obligation
when one is summoned by lawful authority.
A witness is bound by his oath and by obedience due to
lawful authority to tell the truth in answer to the questions
lawfully put to him. How far he is privileged when examined
concerning what he knows under secret, we saw when treating
of the Eighth Commandment of the Decalogue. He is not
bound to incriminate himself, nor, of course, may the seal of
confession ever be broken (cf. Can. 1755).
The canon law laid it down that two witnesses of unsuspected
character were necessary and sufficient evidence of any fact
alleged in a court of justice. A solitary witness was not usually
sufficient or admissible evidence of a crime, and in keeping
with this the theologians decided that a solitary witness should
not declare what he knew of a crime, inasmuch as he was not
lawfully interrogated. English law, however, with most
modern systems, admits one witness, if credible, as sufficient
evidence of a fact, and so as a rule there will be an obligation
on such a one of answering according to his knowledge when
questioned lawfully in a court of justice (cf. Can. 1791).
CHAPTER IV
ON THE DUTIES OF MEDICAL MEN
i. A DOCTOR who holds himself out as ready to undertake
the care of the sick must have competent knowledge of his
profession and must exercise his office at least with ordinary
care and diligence; otherwise he will sin against justice and
charity in exposing himself to the risk of seriously injuring
his neighbour. Unless he is bound by some special agreement
he is not ordinarily obliged to undertake any particular case,
for there are usually others who are willing and able to give
the necessary assistance to the sick. Even in time of pestilence
he will not commit sin if he leave the neighbourhood, unless
he is bound to remain by some special contract. Of course, one
who acted thus would show a mean spirit, and would be justly
reprobated.
2. He should not make exorbitant charges for his services,
nor multiply visits uselessly and thus increase his fees, nor
call in other doctors without necessity. On the other hand,
even at his own serious inconvenience, he should visit a patient
whose case he has undertaken when called as far as is reason-
able, and he should be ready to call in other doctors for con-
sultation when necessary or when he is asked to do so. He
is sometimes bound by the general law of charity to give his
assistance gratis to the poor who cannot afford to pay the
usual fees.
3. He may not neglect safer remedies in order to try those
which are less safe, but there is nothing to prevent him from
prescribing what will probably do good if it is certain that
it will not do harm. In a desperate case, with the consent
of the sick person and of his relations, he may make use of
what will probably do good though it may also probably do
harm, provided that there is nothing better to be done in the
circumstances. It is altogether wrong to make experiments
with doubtful remedies or operations on living human beings,
fiat experimentum in corpore vili.
What has been said of craniotomy and other similar
operations, the use of morphia, hypnotism, and other
9
io DUTIES ATTACHED TO STATES AND OFFICES
dangerous remedies, are questions which have been treated
elsewhere.
4. When the patient is in danger of death, the doctor is
bound out of charity to warn him or those who attend on him
of his danger, in order that he may make all necessary prepara-
tions for death if it should come about.
A medical man should know how to administer baptism in
case of necessity (Can. 743).
PART II
ON THE SPECIAL DUTIES OF CLERICS
CHAPTER I
ON HOLINESS OF LIFE
i . THE sacredness of the duties which a cleric has to perform,
and especially the service of the altar, require in him an internal
holiness so that he may perform his ' duties worthily. " Let
them therefore be holy, because I also am holy, the Lord, who
sanctify them." 1 This holiness must show itself in the exercise
of all Christian virtues so that the cleric may be an example
to those whom he is called upon to instruct and guide on the
way to heaven. As the Council of Trent said: " There is
nothing which is so constant a lesson in piety and the worship
of God as the life and example of those who have dedicated
themselves to the divine service. For since they have been
taken from worldly affairs and placed in a higher position, the
faithful look upon them as models for their imitation. And so
it becomes the clergy who have been set aside for the service of
God so to order their lives and morals that in their dress,
demeanour, walk, speech, and everything about them, nothing
may be seen but what is serious, modest, and breathes the
religious spirit. Let them avoid even slight defects, which in
them would not be slight, so that their actions may win the
veneration of all." 2 This holiness of life is very frequently
inculcated on the clergy in the councils and synods. 8
Their occupations, if worthily performed, are means of
sanctifying them and uniting them with God, and, moreover,
the Church does what she can to secure the same end by
prescribing the daily recitation of the divine office, and spiritual
retreats at stated times (Can. 125, 126).
2. Great personal sanctity becomes the cleric, and is required
if he is to perform his duties worthily. It is a disputed ques-
tion among theologians whether the inferior clergy are as
such in a state of perfection. It is allowed by all that bishops
1 Lev. xxi 8. 2 Sess. 22, c. i, de Ref. Cf. Can. 124.
3 i West., d. 34; 4 West., d. 12.
n
12 DUTIES ATTACHED TO STATES AND OFFICES
are in the state of practising perfection, inasmuch as they are
in a permanent condition of life which is devoted to procuring
the sanctification of those committed to their charge. Religious,
too, by their vows assume the obligation of aiming at perfec-
tion, and in religious life find the means of acquiring it. Both
bishops and religious, then, are in the state of perfection.
St Thomas and many other theologians deny that the secular
clergy inferior to bishops are in the state of perfection, properly
so called. The chief reason is because their condition of life
has not the permanence required for a state in the technical
sense, and although they are occupied in labouring for the
sanctification of others, like bishops, yet they do this rather
as officials and helpers of bishops, not entirely in their own
name and of their own authority. As the learned Suarez
admits, the controversy is rather about words than things,
and we may accept his conclusion that because the higher
secular clergy are bound by vow to continence, and partake
also in the duties of bishops, they may be said to be in an
inchoate state of acquiring and practising perfection. 1
1 Suarez, DeRel. 3, lib. i, c. 17.
CHAPTER II
THE CELIBACY OF THE CLERGY
i. THE celibacy of the clergy rests on a positive enactment
of ecclesiastical law which, nevertheless, supposes the doctrine
of Christ and his Apostles about the excellence of virginity
and its superiority to marriage. From the first ages of the
Church it was felt that there was an incongruity between the
Christian priesthood, with its duties of offering up the euchar-
istic sacrifice, and of whole-hearted devotion to the service
of God, and the use of marriage. The example of our Lord
and the counsels of St Paul told powerfully in the same direc-
tion. Already in the fourth century the law of celibacy existed
which was formulated by Leo the Great in his letter to Anas-
tasius written about the middle of the fourth century:
" Although," he says, " those who are not clerics may freely
give themselves to marriage and the procreation of children,
yet for the exhibiting of perfect chastity marriage is not allowed
even to subdeacons, so that those who have wives should be
as those who have them not, and those who have them not
should remain single." All the more stringently, he goes on
to say, does the same law bind the higher clergy, deacons,
priests, and bishops. This law was frequently inculcated by
subsequent Popes, re-enacted in many ecclesiastical synods,
and at latest in the Second Council of the Lateran (1139)
marriage of the higher clergy was prohibited under pain of
nullity. By ecclesiastical law, then, clerics in sacred orders
are bound to observe perfect chastity, and marriage attempted
by them is null and void. 1 This law is known to all who aspire
to sacred orders, and so those who choose the clerical state
voluntarily embrace the law of continence. Indeed, a vow of
perfect chastity is by ecclesiastical usage annexed to the recep-
tion of sacred orders, so that all who are ordained subdeacons,
by the very fact of receiving ordination, take a solemn vow
of chastity. The discipline of the Eastern Church is somewhat
milder. Clerics belonging thereto may marry before the
reception of sacred orders, and if they have already done this
1 Can. 132, 1072.
13
14 DUTIES ATTACHED TO STATES AND OFFICES
they may keep their wives, except bishops. Even in the East
clerics in sacred orders cannot contract a valid marriage.
2. There is a dispute among theologians as to whether the
obligation of celibacy, which binds clerics in sacred orders,
should be ascribed immediately to ecclesiastical law or imme-
diately to a vow of chastity tacitly taken when sacred orders
are received according to the precept of the Church. The
question is not of great practical importance, for in any case
the obligation of celibacy is derived ultimately from ecclesiastical
law, which binds all clerics in sacred orders to the observance
of perfect chastity. The violation of such a law, at any rate
by external act, is not morally different from a violation of a
vow of chastity. The more common and more probable
opinion is that the obligation of celibacy is derived immediately
from a vow of chastity which every subdeacon takes tacitly
according to the precept of the Church when he receives the
first of the sacred orders. Tacit profession even of the essen-
tial vows of religion was admitted in certain cases until it was
altogether abrogated by a decree of Pius IX dated June 12,
1858. Boniface VIII decided that the vow of chastity thus
tacitly taken by subdeacons is solemn, and that it annuls
subsequent marriage if attempted.
A man who was married but whose wife is dead may be
promoted to sacred orders. " Men who have a wife " are
prohibited from receiving orders according to Canon 987,
2; and Canon 132, sec. 3, lays down that a married man
who, without a dispensation from the Holy See has received
holy orders even in good faith is prohibited from the exercise
of the same.
CHAPTER III
THE CLERICAL DRESS
i . EVER since about the sixth century clerics have had a special
dress of their own to distinguish them from laymen. It is
their uniform, like that of soldiers or sailors, and is a perpetual
reminder to them that they should always conduct themselves
as becomes their profession. At first the clerical dress was
introduced by custom, and then sanctioned by positive law.
On this point the Council of Trent (sess. 14, c. 6, de Ref.),
after saying that although the habit does not make the monk,
yet clerics must always wear the dress suited to their order,
so that by the decency of their dress they may make manifest
the goodness of their moral character, goes on to prescribe
under pain of suspension that all in sacred orders and beneficed
clerics should wear the clerical dress suited to their order and
dignity, according to the ordinance and command of their
bishop. " Let all clerics wear a decent ecclesiastical dress
according to the lawful customs of the place and the precepts
of the local Ordinary " (Can. 136).
The common law of the Church therefore imposes on all
the clergy the obligation of wearing the clerical dress, and it
leaves to bishops the task of making further regulations on the
point suitable to the circumstances of the country. In England,
the Fourth Synod of Westminster (d. n, nn. 12-14) decreed
that the Roman collar was always to be worn, that the dress
must be of black or dark material, and that in the house or
church the cassock should be worn. The Third Plenary
Council of Baltimore (n. 77) made the same regulations for
the United States, except that the wearing of the cassock in
the house or in the church is prescribed, not merely declared
to be especially becoming.
2. The clerical tonsure is also prescribed by the common
law of the Church, but it has not been reintroduced into
England since the Reformation, nor is it in use in the United
States. However, the obligation of not wearing hair on the
face is laid down in the Fourth Synod of Westminster (loc. cit.).
On this point Canon 136 prescribes:
" Let them wear the tonsure or clerical crown, unless this
15
1 6 DUTIES ATTACHED TO STATES AND OFFICES
be against the received manners of the people, and let them
use a simple and ordinary care of the hair."
All religious are bound by these and similar obligations of
clerics according to Canon 592.
3. These laws of themselves bind under pain of mortal sin
which, however, would not be committed if there were good
cause for doing what they forbid, nor if they were neglected
without contempt or grave scandal for a short time. Theo-
logians consider that the clerical dress would have to be
neglected for more than three or four days in order to sin
grievously, and a much longer time would be required for a
grave violation of the law concerning tonsure. Venial sin,
of course, is committed by breaking the law without legitimate
excuse even for a short time.
CHAPTER IV
THE DIVINE OFFICE
i. ALL who are in sacred orders, all beneficed clergy, and
all religious orders which have solemn vows and keep choir,
are bound every day to recite the divine office, otherwise
called the canonical Hours, or the breviary. This obligation
is now enforced by positive ecclesiastical law in Canons 135,
1475 (sec. i), 610, 413. ;
The obligation of saying the office begins for secular clerics
with the reception of the subdiaconate, or the lawful and full
possession of their benefice. The obligation as it affects
religious is primarily incumbent on the superior, whose duty
it is to provide for the saying or singing of the divine office
under pain of grave sin. Each religious is bound to assist
in choir unless lawfully excused, and if one who is solemnly
professed is absent he must recite the office in private.
Religious under simple vows should be present in choir, but
if they failed to be present they are not obliged to say the office
in private, unless, of course, they be in sacred orders.
2. The obligation of saying the divine office for all who are
bound by it is grave, so that a mortal sin is committed by
wilfully and without lawful excuse omitting it or any con-
siderable portion of it. According to theologians, one of the
little Hours or any portion of the same length is to be reckoned
considerable, so that its culpable omission will be a grave sin.
Anything less than this will be only venial. A beneficed cleric
not only sins by neglecting his office, but he loses his right to
a proportional amount of the fruits of his benefice, and if he
has already received that amount he must restore it to the
fabric of the church or to the diocesan seminary, or give it to
the poor (Can. 1475, sec. 2).
When two or more say the office together, the psalms may
be said in alternate verses, one side listening while the other
is reciting its verse. The rest listen while the lessons are said
or sung by those appointed to the task.
3. Although the canonical Hours as said at different periods
and in different churches have always been much the same
in substance, yet in many details there has been considerable
ii. 17 2
1 8 DUTIES ATTACHED TO STATES AND OFFICES
variety. Pope Pius V desired to introduce greater uniformity
in the method of saying the divine office, and for this purpose
he issued the Roman Breviary, and made its use obligatory
on all who were bound to the office under pain of not satisfying
their obligation. He abolished the use of other breviaries with
the exception of such as dated back more than two hundred
years. The divine office, therefore, must be recited according
to the form of the Roman Breviary, and in Latin, the liturgical
language of the Church.
Offices proper to particular countries, dioceses, and religious
orders, are allowed to be inserted in the breviary and said only
by the authority of the Apostolic See, and when a proper office
has been thus granted it becomes obligatory on the grantees
unless it was expressly conceded as permissive.
Pius V took away the obligation, which existed according
to the rubrics of the breviary, of reciting the Little Office of
the Blessed Virgin, the penitential and gradual psalms, and the
Office of the Dead; but though he took away the obligation, still
he exhorted those bound to the divine office to recite them,
and granted indulgences to such as followed his exhortation.
The recitation of the Litany of the Saints on the feast of
St Mark, and on the Rogation Days, forms part of the office.
4. The office to be said on any particular day is indicated
in the calendar drawn up and approved by the proper authority.
It is a matter of obligation under pain of venial sin to adhere
to the calendar, even if it seem to be wrong, unless it is mani-
festly against the rubrics or decrees of the Sacred Congregation
of Rites. A reasonable cause, however, even though it be not
a very grave one, will suffice to excuse the substitution of one
office for another. If a wrong office has been said by mistake
or inadvertence, there is no obligation to say the correct one;
but if this is notably longer, some portion should be said to
make up the difference.
The calendar to be followed is that of the church, diocese,
or religious order to which one belongs. If absent from one's
place of domicile for a time, the general rule is that one's own
calendar should be followed; but in the case of regulars who
recite the office in choir, a regular living for a time in another
monastery should conform to the calendar of the place where
he resides.
5. In each day's office the order of the Hours should be
observed at any rate under pain of venial sin. But here also
any reasonable cause of some weight will excuse the saying of
the Hours out of their proper order. If the time has arrived
THE DIVINE OFFICE 19
for anticipating Matins and Lauds for the next day, these may
be said without any special reason even though the office of the
day has not yet been finished, for each day's office is indepen-
dent of any other.
6. The divine office is a vocal prayer imposed on the clergy
by the Church. It is not sufficient to run over it with the
eyes or mentally; the words must be uttered and formed
without mutilation by the lips, though it is not necessary to
produce an audible sound. The different Hours must be
said without interruption as one continuous prayer under pain
of venial sin, from which any reasonable cause will excuse.
The recitation may be interrupted between the several Hours,
between Matins and Lauds, and for the space of a few hours
even between the Nocturns of Matins. Provided that the
whole office be said within the natural 1 or ecclesiastical day,
whatever interruptions may have taken place, the obligation will
be substantially fulfilled, and when an interruption has been
made within an Hour, or even in the middle of a psalm or lesson,
there is no obligation to repeat what has already been said.
7. As was said above, the divine office is the task of the day,
and provided that the whole of it is said within the day, reckon-
ing from midnight to midnight, the cleric will have fulfilled
his duty substantially so as to be excused at least from mortal
sin. The rubrics, however, which in this matter bind under
venial sin, assign certain times of the day for the saying of the
Office. Matins and Lauds should be said before Mass, Prime
and Terce should be said before midday, Sext and None are
said in the interval between midday and Vespers, Vespers and
Compline are said when the sun is midway between the zenith
and sunset. All the little Hours may be said before midday,
and during Lent, beginning with the first Sunday, Vespers
are also said before midday.
Matins and Lauds of the following day may be anticipated
on the previous evening. The normal time for anticipating
begins with the hour of Vespers, but a special privilege is often
granted by which Matins and Lauds of the following day may
be begun at 2 p.m. throughout the year. Indeed, there does
not seem to be any necessity for a special grant, for a custom
has been introduced, by the very common practice of good
priests, of anticipating throughout the year after two o'clock.
A cleric may safely follow this custom.
Permission to anticipate is a privilege which no one is bound
to use ; the obligation of the day's office only begins at twelve
o'clock.
20 DUTIES ATTACHED TO STATES AND OFFICES
The breviary contains rubrics directing that certain prayers
be said on bended knee; these rubrics, however, do not bind
when office is said privately out of choir. In private the office
may be said in any place or in any position that is compatible
with the due reverence to God which should be shown in
prayer.
8. The obligation of saying the breviary is imposed by
ecclesiastical precept, and the question arises what internal
dispositions are necessary while reciting the office in order to
satisfy the positive precept of the Church. Does one who is
voluntarily distracted while saying the office satisfy his obliga-
tion, or must he repeat what he said with voluntary distractions ?
It is not a question of what is required that prayer may be
pleasing to God voluntary distractions while praying are
certainly venial sins but the question is, what sort of attention is
required by the law of the Church under pain of not fulfilling
the obligation imposed by the law ?
Attention, which is an act of the mind adverting to what
is being done, must be distinguished from intention, which is
the will to do something. At least, a virtual intention to say
the office is required that the act may be voluntary, such as
the law prescribes. Theologians distinguish between internal
and external attention. The former consists in directing the
mind to God, or in thinking of the sense of the words uttered,
or in being careful to pronounce them correctly, and it is
certain that any of these forms of internal attention is sufficient
to satisfy the precept. External attention means the abstaining
while engaged in prayer from any external occupation which
is incompatible with internal attention. Thus one who
curiously examines a painting while praying, or intently listens
to what someone is saying, has not external attention.
It is a disputed point among theologians whether this ex-
ternal attention is sufficient in order to satisfy the precept of
saying the office, or whether there must be in addition internal
attention. In other words, they dispute whether one who is
voluntarily distracted but apparently devout while saying the
breviary satisfies the law, or whether he must repeat what he
has said with wilful distractions.
Although, of course, all should strive after internal attention,
and sin is committed if voluntary distractions are admitted
while praying, yet it is probable that external attention is
sufficient to satisfy the positive law of the Church. For the
Church does indeed prescribe prayer, but there is prayer in
a real sense when one says the breviary with the intention of
THE DIVINE OFFICE 21
fulfilling his obligation, and with decorum and a devout de-
meanour, even though he is thinking of something else the
while. If voluntary distractions destroy the essence of prayer,
involuntary distractions will do so likewise, and yet it is im-
possible to avoid involuntary distractions altogether. This
milder opinion is especially of use in order to calm scrupulous
and anxious souls. 1
9. As the obligation of saying the divine office arises from
positive law, it does not bind when it would entail serious
inconvenience. On this ground one who is sick, or who
cannot say his office without causing a serious headache, is
excused. Moreover, other occupations, undertaken for the
good of our neighbour and such as cannot be neglected without
his loss, will be a sufficient excuse for omitting the office, when
both duties cannot be fulfilled. And so missionaries, who are
all day long occupied in hearing confessions and preaching,
are excused from the office which would interfere with their
work. Even when there is not a sufficient cause to excuse
of itself from the law, a dispensation may be lawfully obtained
from the competent authority, if there be good cause for it.
The Pope can grant a dispensation to any cleric, a bishop can
dispense in particular cases with those of his diocese, and a
regular prelate has similar powers for his own subjects. Wider
powers are also granted as a special privilege by the Holy See.
The faculty of saying fifteen decades of the rosary instead of
the office is frequently granted to missioners who are lawfully
prevented from saying the office. The meaning of which is
that there must be some difficulty in getting in the office, but
it need not be so great as would of itself excuse altogether from
the obligation. Inasmuch as the office is composed of several
portions which are usually said separately, there will be an
obligation to say any such portion if it can be done without
serious inconvenience, even though it be impossible to say the
whole.
1 Lugo, De Eucharist. 22, n. 25.
CHAPTER V
ON THINGS FORBIDDEN TO CLERICS
i. IN general, clerics are forbidden to do anything which is
unbecoming their state of life or which interferes with the
due discharge of their, duties " No man being a soldier to
God entangleth himself with secular businesses," says St Paul
(2 Tim. ii 4). They are expressly forbidden to indulge in
games of chance for money, to carry arms unless there is good
reason to fear attack, to hunt with hounds, to enter inns and
similar places without necessity or some good reason approved
of by the Ordinary of the place (Can. 138).
Similarly, they are forbidden to practise medicine or surgery
without leave of the Holy See, to act as public notaries, except
in the ecclesiastical court, to hold public offices which involve
the exercise of lay jurisdiction or administration.
2. Without leave of their own Ordinary they should not
undertake the agency for property belonging to laymen, nor
secular offices which entail the duty of rendering accounts;
they should not exercise the office of procurator or advocate
except in the ecclesiastical court, or when a cause of their
own or of their church is being tried in the civil court; they
should take no part, not even as witnesses, without necessity
in a lay criminal trial.
Clerics are forbidden to go surety even with their own
property without consulting the local Ordinary.
3. They are forbidden to offer themselves for the post of
Members of Parliament or to accept it without leave of their
own Ordinary and of the Ordinary of the place where the
election is held (Can. 137, 139).
4. Clerics are forbidden to retain in their houses or in any
way to be familiar with women about whom any suspicion
can arise.
They may live under the same roof only with those women
of whom natural ties allow no suspicion to be entertained,
such as mother, sister, aunt, and so forth, or whose good
character and mature age make them free from all suspicion.
The judgement as to whether the retaining or being intimate
with women, even with those on whom suspicion does not
22
ON THINGS FORBIDDEN TO CLERICS 23
usually fall, can in any particular case create scandal or be a
danger to morals, belongs to the Ordinary of the place, whose
duty it is to forbid such retaining or intimacy to clerics (Can.
133 54 West, d. n, n. 3).
5. Canon 140 forbids clerics to be present at spectacles,
dances, and pageants which do not become them, or when
their presence would cause scandal, especially in public theatres.
" The word spectacula" says Fr. Ayrinhac, " comprises
all theatrical representations and likewise such exhibitions as
horse-races, bull-fights, prize-fights, etc., at least if it be taken
in its most general sense." Dom Augustine gives a similar
definition of the term.
Provincial legislation often makes this general law more
precise. Thus 4 West., d. n, n. 9 is as follows: " We strictly
prohibit ecclesiastics who have received sacred orders from
being present at stage representations in public theatres or in
places temporarily made use of as public theatres, under the
penalty to transgressors of suspension to be incurred ipso facto,
as has hitherto been the rule in all parts of England, with
reservation to the respective Ordinaries."
Clerics, therefore, are forbidden to be present at public
not at private theatricals by this law. Custom in England
makes an exception with regard to those exhibitions which are
given by mere children.
6. Clerics are forbidden to enter military service, unless they
do so with the leave of their own Ordinary in order that they
may be free the sooner, and to aid in any way civil war and
disturbances of public order (Can. 141).
Clerics are forbidden to trade in person or through another,
whether in their own interest or in that of others (Can. 143).
The trading which is forbidden to clerics and all religious
is trading in the strict sense of the term. In this sense to trade
is to buy commodities, not for consumption, but with the
intention of selling them again at a higher price without chang-
ing their nature. So that it is not trading in the strict sense
to sell the produce of one's own land, nor to sell what was
bought for consumption but was found to be unsuitable, nor
to sell without profit to the poor, nor to sell a picture painted
by one's self with colours bought in the market. However,
certain transactions which have the appearance of trading are
sometimes forbidden on account of the danger and scandal
which they are apt to cause.
It is not illicit trading to invest money in Government stock
or other bonds which bear interest, though it would be un-
24 DUTIES ATTACHED TO STATES AND OFFICES
lawful speculation to invest money with the intention of selling
out at a profit if the price rises. Although it is forbidden to
clerics to act as directors or to take part in the management of
industrial and commercial companies, yet it is probable that a
cleric may lawfully invest money in such enterprises as are
honest merely with a view of getting interest on his investment.
He only buys the right to receive interest on his money, much
in the same way as if he invested it in Government stock.
The prohibition against trading binds under pain of grave
sin if the matter be considerable. However, trading implies
a habit, and so in the opinion of many divines to trade once
in a way, even in a considerable quantity, would not be a
mortal sin.
Canon 2380 prescribes that clerics and religious who violate
the law against trading be punished by the Ordinary according
to the gravity of the fault.
CHAPTER VI
ON BENEFICES
MENTION has several times been made already of benefices,
and in this place moral theologians usually treat of the special
obligations in conscience of beneficed clergy.
An ecclesiastical benefice is a juridical entity founded or
erected in perpetuity by competent ecclesiastical authority,
and it consists of a sacred office and the right to receive the
income from the dowry annexed to the office (Can. 1409).
The dowry of a benefice consists either of property whose
ownership belongs to the juridical entity itself, or of certain
and due payments made by some family or moral person, or
of certain and voluntary offerings of the faithful, which belong
to the rector of the benefice, or stole fees, as they are called,
within the amounts fixed by the diocesan tax or lawful custom,
or of choral distributions with the exception of a third part
of them, if the whole income of the benefice consists of choral
distributions (Can. 1410).
When he has lawfully taken possession of his benefice, every
beneficiary enjoys all the rights both temporal and spiritual
which are annexed to the benefice (Can. 1472).
Although the beneficiary may have other property besides
what is derived from his benefice, he can freely use and enjoy
the fruits of his benefice which are necessary for his decent
support; but he is bound by the obligation of spending what
remains over on the poor or on pious causes, but a Cardinal
can dispose even by will of all the fruits of his benefice (Can.
H73)-
If a cleric violates this precept and disposes of what remains
over in other ways, he sins against obedience but probably not
against justice, so that there is no obligation to restore what
has been disposed of against ecclesiastical law.
The beneficiary is bound faithfully to fulfil the special duties
annexed to his benefice, and, moreover, daily to recite the
canonical Hours (Can. 1475, sec. i).
If, without any legitimate excuse, he has failed to satisfy
his obligation of reciting the canonical Hours, in proportion
to his omission he does not make the fruits of the benefice his
25
26 DUTIES ATTACHED TO STATES AND OFFICES
own, and must hand them over to the church fabric or to
the diocesan seminary, or must give them to the poor (Can.
1475, sec. 2).
The beneficiary, as the guardian of his benefice, ought to
administer the property belonging to his benefice according
to law (Can. 1476, sec. i).
If he is negligent or in any other way in fault, he ought to make
good the damage done to the benefice, and he should be com-
pelled to make compensation for it by the local Ordinary, and
if he be a parish priest he can be removed from his parish in
accordance with Canon 2147 ff.
The Code of Canon Law and the canonists should be referred
to for fuller treatment of this matter.
CHAPTER VII
ON THE SPECIAL DUTIES OF BISHOPS
i. THE duties of bishops of the Catholic Church are treated
of at length in canon law; here we will touch upon the chief
of them in so far as they affect conscience.
In order to be able to fulfil his various duties a bishop must
habitually reside within the limits of his diocese. It is a
disputed point among theologians whether this obligation is
derived immediately from the divine ' law or from the positive
law of the Church. We may say that at least remotely and in
substance it belongs to the divine law, for in detail it is deter-
mined by the positive law of the Church. The bishop need
not always live in the episcopal city, but he should be there
to pontificate in the cathedral on the more solemn festivals of the
year. Notwithstanding the obligation of residence the Code of
Canon Law allows a bishop to absent himself from his diocese
for good cause for a period of two or three months every year
provided that he can do so without injury to his flock. 1 His
own conscience must decide what cause is sufficient to justify
his absence. Besides these two or three months a bishop
may further absent himself if Christian charity, urgent necessity,
due obedience, or the evident advantage of Church or State
require it. But besides these reasons, in countries subject to
the Sacred Congregation of Propaganda, the leave of the Sacred
Congregation is also required for longer absence than the two
or three months mentioned above.
2. At stated times bishops are bound to visit their dioceses
in order to promote sound religious teaching and to correct
errors in doctrine, to protect the good and punish the wicked,
and to exhort the people to lead religious, peaceful, and good
lives. 2 They are specially bound to watch over the morals
and discipline of the clergy, and that there may be a constant
supply of zealous priests for the needs of the diocese they
should have a seminary for the education of those whom God
calls to the clerical state. By the authority of the Holy See
several dioceses may have a seminary in common if they are
too small and poor to support a separate one for themselves. 3
1 Can. 338. 2 Can. 343. 3 Can. 1354.
27
28 DUTIES ATTACHED TO STATES AND OFFICES
The care of sound Christian doctrine is specially entrusted to
bishops, and in the exercise of this charge they may visit public
and private institutions, except such as are exempted from
their jurisdiction, and they may condemn bad books not only
by their ordinary authority, but as delegates of the Holy See
in this important matter. They are bound at times to preach
the word of God; every Sunday and day of obligation, even
on the feast days that have been suppressed, they are bound
to offer up Mass for the people committed to their charge;
they should hold a diocesan synod every ten years, and make
their visit ad limina at the fixed times, in order to render an
account of the state of their dioceses to the Holy See.
CHAPTER VIII
ON THE DUTIES OF CANONS
. THE canons attached to a cathedral church form the council
or senate by whose advice and help the bishop is assisted in
the government of the diocese. Collegiate churches were also
served by a body of canons. By the common law, besides
helping the bishop in the government of the diocese, canons
were bound to residence near the church which they served;
they were bound to sing the divine office every day in choir,
and in turn to celebrate the conventual Mass. When a bishopric
becomes vacant the government of the diocese devolves on the
chapter of canons, who must elect within eight days after the
vacancy occurs a vicar capitular to administer the affairs of the
diocese until the appointment of a new bishop.
2. As there are either no prebends for the support of the
canons in this country, or their income is too small for the
purpose, our canons have been dispensed by the Holy See
from the obligation of residence near the cathedral and from
the daily celebration therein of Mass and divine office. They
are, however, still bound to assemble at the cathedral on some
one day in every month to be designated by the bishop, and
on that day to sing office, say a conventual Mass, and hold a
chapter. Similar provisions have been made in other countries.
In the United States the place of canons is to some extent
taken by the diocesan consulters.
In diocesan matters of importance the bishop is bound to
ask the advice of his canons, and sometimes it is specially
provided that he must obtain their consent to what he proposes
to do.
Canons in England do not indeed elect a new bishop, but
the Holy See has granted them the right of commendation,
which is exercised by electing three clerics whose names they
send in alphabetical order to the archbishop or to the senior
bishop if the vacancy occurs in the archbishopric. The
bishops then hold a meeting and after deliberation send the
names with their remarks and opinions concerning the merits
of each to the Holy See. The Holy See selects one of the
three or someone else as it is judged more expedient.
29
CHAPTER IX
ON THE DUTIES OF PARISH PRIESTS
i. THE parochial system is not an institution of the primitive
Church, much less of divine origin. For some centuries it
was usual for the bishop to reside in some city with his body
of clergy around him, some of whom were despatched as
occasion required to minister to the faithful in outlying districts.
In the fifth and sixth centuries parishes began to make their
appearance in some places in the country districts, and in the
eleventh, parish churches began to be instituted in the cities.
Even at the period of the Council of Trent the parochial system
had by no means become universal, but this council com-
manded that where churches had no fixed limits nor the pastors
their own flock, and the sacraments were administered pro-
miscuously to any who asked for them, the bishops should
divide the people into fixed and proper parishes and assign
to each its perpetual and separate parish priest, who might
know them, and from whom alone they might lawfully receive
the sacraments. 1 It added, indeed, that they might provide in
some better way as circumstances of place demanded.
The Code of Canon Law prescribes that the territory of
each diocese be divided into distinct parts called parishes, and
that to each parish be assigned its own parish church with
separate parishioners, and over it is to be placed its own parish
priest for the necessary cure of souls (Can. 216).
The bishop should also divide his diocese into separate
districts consisting of several parishes and called vicariates
forane, or deaneries.
In the same way, where it can be done conveniently, vicariates
apostolic and prefectures apostolic are to be divided.
The parts into which vicariates and prefectures apostolic
are divided are called quasi-parishes, and the priests placed
over them are called quasi-parish priests.
A parish priest is a priest or moral person or corporation
who is collated to a parish in title with the cure of souls to be
exercised under the authority of the local Ordinary (Can. 451).
A monastery or a cathedral chapter may have the habitual
1 Sess. 24, de Ref., c. 13.
30
ON THE DUTIES OF PARISH PRIESTS 31
cure of souls as parish priest, but in accordance with Canon 471
such corporation must constitute a vicar to exercise the actual
cure of souls, and allow him his decent support according to
the judgement of the bishop.
When the parish priest has obtained possession of his parish,
it is his lawful title for the exercise of all the duties and rights
belonging to the office, and for the receiving of all the emolu-
ments connected with it.
Quasi-parish priests and vicars of parish priests have in
general all the rights and duties of parish priests (Can. 451,
sec. 2).
2. In order that a parish priest may be able to fulfil his
duties and be ready to help his parishioners in their spiritual
needs, he should reside in the presbytery near the church.
The parish priest is allowed to be absent for two or three
months, either continuous or interrupted, in the year, unless
a grave reason in the judgement of the Ordinary himself
requires a longer absence or permits only a shorter.
The days during which a parish priest is engaged in spiritual
exercises, in accordance with Canon 126, once a year, are not
reckoned in the two months of vacation.
Whether the time of vacation be continuous or interrupted,
when the absence is to last beyond a week, the parish priest,
besides a legitimate cause, ought to have the leave of the
Ordinary in writing, and leave a vicar as substitute in his place
to be approved by the same Ordinary; and if the parish priest
is a religious he requires, in addition, the consent of his superior,
and his substitute ought to be approved both by the Ordinary
and by his superior.
If a parish priest is compelled by some sudden and grave
reason to depart and to be absent beyond a week, let him
inform the Ordinary by letter as soon as possible, telling him
the reason of his departure and the priest who supplies for
him, and let him abide by his commands. Even for a period
of shorter absence a parish priest ought to provide for the
needs of the faithful, especially if special circumstances demand
it (Can. 465).
The Westminster Synods require that curates give notice
to the parish priest if they wish to absent themselves even
for a day.
3. On Sundays and on the other days of obligation through-
out the year it is the peculiar duty of the parish priest to preach
the word of God to the people in the usual homily, especially
in the Mass, which is more frequented by the people.
32 DUTIES ATTACHED TO STATES AND OFFICES
The parish priest cannot habitually satisfy this obligation
by employing another to do it, except for a good reason approved
by the Ordinary.
The Ordinary may allow the sermon to be omitted on certain
more solemn festivals, or even on some Sundays for a good
reason (Can. 1344).
The kind and manner of instruction should be accommodated
to the people, teaching them what is necessary for salvation,
inveighing against vice and inculcating virtue, so that the
people may be able to avoid hell and gain heaven, as the Council
of Trent teaches.
The parish priest should prepare the children of his parish
for the reception of the sacraments of Penance and Confirma-
tion, and more specially for their first Communion. Moreover,
after their first Communion he should take the opportunity to
give them fuller instruction. On Sundays and days of obliga-
tion at some suitable time he should give catechetical instruction
to the grown-up people of his parish (Can. 1330-1332).
4. To be able to fulfil his duties towards the members of
his flock, a parish priest must know them, and he should not
wait till they come to him ; he should visit them and seek out
those who have wandered from the fold. He is bound to
correct the erring and to strive to recover them. He should
also be able to devote some time to inquiring souls outside
the fold. He should keep a book in which to enter particulars
concerning the status animarum. He must be ready to ad-
minister the sacraments at the reasonable request of his
parishioners, and he must say Mass in order that they may
be able to fulfil their obligation of hearing it on the appointed
days. Indeed, the provincial synods express a desire that
there should be Mass daily in the parish church, and it will be
the duty of the priest to provide this wherever the faithful have
been led to expect it and frequent the church for the purpose.
On all Sundays and holidays of obligation, even on those
that have been suppressed, parish priests are bound to apply
Mass for their people (Can. 466).
Quasi-parish priests are bound to apply Mass for their people
at least on the more solemn feasts mentioned in Canon 306.
The parish priest should say the Mass to be applied for the
people in the parish church unless circumstances require or
suggest otherwise. If he is lawfully absent he can apply the
Mass for the people either himself in the place where he is
staying, or through the priest who supplies for him in the
parish (Can. 466, sees. 4, 5).
ON THE DUTIES OF PARISH PRIESTS 33
The Code mentions five kinds of parochial vicars: Vicarius
curatus, Vicarius oeconomus, Vicarius substitutus, Vicarius
adjutor, and Vicarius co-operator.
It will be sufficient for our purpose to say something on
the duties of Vicarii co-operatores, or curates, as they are fre-
quently called in this country.
If, on account of the number of people or for some other
good reason, the Ordinary judges that one priest cannot look
after a parish, he should appoint one or more curates and
assign them a decent support.
The rights and duties of a curate are to be learnt from the
diocesan statutes, from the letters and faculties of the Ordinary,
and from the commission of the parish priest, but unless his
sphere of activity is expressly limited, he should, from the
nature of his office, take the place of the parish priest and help
him in the whole care of the parish, except that he is not bound
to apply Mass for the people. He is subject to the authority
of the parish priest, who ought in a fatherly manner to instruct
and guide him in the cure of souls, watch over him, and at
least once a year send a report concerning him to the Bishop
(Can. 476).
n.
CHAPTER X
ON PRIESTS WITHOUT SPECIAL CHARGE
i. THE Council of Trent declared 1 that no one should receive
ordination who was not, in the judgement of his bishop,
necessary or useful to the diocese, and it decreed that nobody
should in future be ordained without being incardinated in
the diocese for whose necessity or advantage he was taken,
so that all priests may have occupation and may not wander
about without fixed abode.
The new Code of Canon Law prescribes that all clerics
must belong either to some diocese or to some religious order,
so that unattached clerics are nowise tolerated. A cleric is
incardinated in the diocese for whose service he was promoted
by the reception of the clerical tonsure (Can. in).
All clerics, but more especially priests, are bound by a
special obligation to show reverence and obedience to their
respective Ordinaries. As often and for so long as the necessity
of the Church requires it, in the judgement of the Ordinary,
and unless excused by some lawful impediment, clerics must
accept and fulfil the duties of the office which is assigned them
by the bishop (Can. 127, 128).
Although they have not a benefice or a residential office,
clerics may not depart for any considerable time from their
diocese without at least the presumed leave of their own
Ordinary. One who with the leave of his own Ordinary has
gone to another diocese while remaining incardinated in his
own, can be recalled if there is a good reason and natural
equity is observed, and the Ordinary of the other diocese also
can for a good reason refuse him leave to stay any longer in
his diocese, unless he has conferred a benefice on him (Can.
2. Before ordaining a cleric the bishop should satisfy him-
self that the candidate is worthy and fit for the work of the
sacred ministry. He must have the requisite holiness of life,
without which the receiving of orders will only add to his
greater condemnation. He must possess the knowledge
necessary for the exercise of his duties, and he must be called
1 Sess. 23, c. 15, de Ref.
34
ON PRIESTS WITHOUT SPECIAL CHARGE 35
by God. There is some apparent difference of opinion as to
what precisely is implied by the necessity which all admit of
a vocation from God to the clerical state. It is certain that
no one may lawfully intrude himself into the ministry of his
own accord. He must be duly approved and chosen for the
work by the bishop. According to the catechism of the Council
of Trent the words of the epistle to the Hebrews are to be
understood of this external vocation through the lawful ministers
of the Church. " Neither," we there read, " doth any man
take the honour to himself, but he that is called by God as
Aaron was." 1
It is commonly admitted that besides this external vocation
by the lawful prelates of the Church in the name of God, an
internal call is also necessary. To be consecrated to the service
of God a man must have the requisite gifts of body, mind,
and soul, and, moreover, he must be satisfied that it is the will
of God that he should devote himself to the sacred ministry,
and that he will be able to perform its duties worthily, and
thereby save his soul. The will of God in such matters is
made known in various ways. Sometimes it is as plain and
evident as was the call of St Paul on the road to Damascus.
As a rule it becomes known by internal inspirations by which
one is brought to think highly of the ministry, and by motions
of the will by which one is drawn to desire it for the glory of
God, the good of one's fellow-men, and the salvation of one's
own soul. To embrace the priesthood without the conscious-
ness of any such divine call would be hazardous and rash, and
it would be grievously sinful if there were no wish or no prospect
of being able to fulfil the duties of the clerical state. On the
other hand, if the motive for embracing the clerical life were
not seriously wrong, and if there' were the firm resolve to fulfil
the duties of the priesthood faithfully, and a reasonable prospect
of being able to do so, many approved divines consider that
a person choosing the priesthood without a divine vocation
would not sin grievously.
Divines discuss the question as to whether a cleric who
has contracted a bad habit of secret sin would sin grievously
by receiving sacred orders before he had overcome his bad
habit. Some defend the view that he would do so, because
he would violate the law of the Church which requires holiness
of life in one who is admitted to sacred orders. Even if we
admit with others that it is difficult to sustain this view, that
the Pontifical seems not to countenance it, yet in ordinary
1 Heb. v 4
36 DUTIES ATTACHED TO STATES AND OFFICES
cases it expresses the correct opinion in practice, for commonly
there will be little chance of a cleric living up to his profession
who before ordination had contracted a vicious habit. Such
a one undertakes more than he can fulfil and sins grievously
against the natural, if not against the positive law. His con-
fessor then would be justified in bidding him defer ordination
till he has corrected himself, and enforcing his command with
a threat of refusing absolution, except in some extraordinary
case of sudden and complete conversion.
Canon 1363 forbids the Ordinary to receive into his seminary
any but legitimate boys whose disposition and will give hope
that they will always devote themselves to the ministry of the
Church with fruit. Before reception they must show certifi-
cates of legitimate birth, of baptism and confirmation, and
testimonies of being of good character. Special provisions are
made with regard to those who have been dismissed from another
seminary or from a religious order (Can. 1363).
There used to be a controversy as to whether a priest as
such was bound to say Mass. This question is settled by
Canon 805 : " All priests are bound to say Mass several times
a year; moreover, let the Bishop or the religious superior take
care that they say Mass at least on all Sundays and holidays
of obligation. "
PART III
ON THE SPECIAL DUTIES OF RELIGIOUS
CHAPTER I
ON THE NATURE OF THE RELIGIOUS STATE
i. WE learn from the Gospels that, besides the ordinary way
of the Commandments to be followed by all who wish to save
their souls, our Lord proposed the way of perfection to the
select few who wished to follow him more closely. 1 This way
of perfection consists in renouncing the goods of this world
and the cares of family life, and following our Lord's example
of perfect obedience to the will of our heavenly Father. From
the first ages of the Christian Church there were many who
accepted our Lord's invitation and lived in voluntary poverty
and chastity. Comparatively few historical documents of the
earliest centuries of the Christian era have survived, but we
find traces of a body of ascetics and virgins to whom a place
of special honour was assigned in the Church. At first they
seem to have lived in the bosom of their families, but soon they
fled to the deserts of Egypt, Syria, and Palestine, and for
guidance and encouragement put themselves under the rule of
some experienced hermit. Nothing was then wanting to the
essence of the religious state except vows and a rule. When
the counsels of perfection began to be practised under vow
cannot be determined exactly; the first formal religious rules
are the work of St Basil and St Benedict. Thus in its essence
the religious state has been instituted by Jesus Christ, and, as
historically evolved under the guidance of his Church, it may
be defined as a fixed and stable way of life approved by the
Church for the faithful who, under a certain rule and a common
way of living, wish to aim at perfection by the observance of
the three vows of poverty, chastity, and obedience, with the
entire surrender of one's self to God. Thus those who devote
themselves to works of piety and charity without vows, or
with only private vows, are not in the religious state, nor are
they technically called religious. They want the necessary
1 Matt. xix.
37
38 DUTIES ATTACHED TO STATES AND OFFICES
stability. This stability is given by the profession of public
vows of poverty, chastity, and obedience, the chief of the
counsels of the Gospel, by which a person renounces the
attractions of this world which draw so many away from God,
in order to give himself wholly and entirely without let or
hindrance to the love and service of God. The Church has
always watched over and fostered the practice of religious life.
In the thirteenth century there was danger of the great variety
of religious orders causing confusion, and the Fourth Council
of the Lateran forbade any new orders to be founded. The
practical effect of this law was to prohibit new orders without
the approbation of the Holy See. It is still in force as regards
orders with solemn vows, which cannot be founded without
the special approbation of the Pope. According to the new
Code, bishops, but not Vicars Capitular or Vicars General, can
found religious congregations with simple vows, but they are
forbidden to found them or allow them to be founded without
consulting the Holy See. If there is question of founding
tertiaries living in common, the leave is also required of the
General of the first order to which the tertiaries are to be
affiliated (Can. 492).
A religious congregation founded by a bishop may in
process of time acquire houses in other dioceses, but it remains
diocesan and is wholly subject to the local Ordinaries, according
to law, until it obtains a decree of the Holy See in praise of its
end and scope, or one of formal approbation.
The end of religious life is perfect union with God, in which
man's perfection consists, and this union the religious disposes
himself for by the constant practice of works of sublime charity
and of renunciation of all that could be an obstacle to charity.
Thus the religious state is the state of perfection; not that
religious are supposed to be already perfect, but because per-
fection of Christian charity is the end aimed at, and suitable
means are furnished therein for obtaining that end.
2. The special obligations under which a religious lies follow
from the nature of the religious state which we have described.
Inasmuch as he devotes himself to the service of God in religion,
he must do nothing that would endanger his perseverance or
cause him to be dismissed from the order. He is especially
bound to observe his vows of poverty, chastity, and obedience,
which he has voluntarily made to God, and in which the essence
of religious life and the chief means of practising perfection
consist. He is bound to keep the rule which he takes for his
guide in life by the very fact of entering into the order which
ON THE NATURE OF THE RELIGIOUS STATE 39
he has chosen as well as by ecclesiastical law (Can. 593). The
obligation imposed by the rule is not the same in all religious
orders. In some it binds under sin like the precepts of the
superior. The rules of the Dominicans, Jesuits, and of most
of the modern congregations, of themselves, speaking generally,
do not bind under sin. Particular precepts are sometimes
inserted in the rule, and these of course are to be observed
under sin like any other precepts of obedience. Apart from
these the rule is rather a guide of conduct in religious life,
and an indication as to how the superior should govern his
subjects, than a rigid code of law binding under pain of sin.
However, divines point out that frequently violations of such
a rule will be sinful, not precisely because they are infractions
of the rule, but because there will frequently be something
defective in them as moral acts. If the silence which the rule
prescribes is broken without just cause, the act will be sinful
on account of the motive which led to it, the scandal which
it causes, and its tendency to loosen the bonds of religious
discipline. Formal contempt of the rule, by which a religious
refuses to be guided by it, and wishes to show his independence,
is mortally sinful, because it is directly contrary to his religious
profession.
CHAPTER II
ON ENTRANCE INTO RELIGION
i . OUR Lord Jesus Christ proposed the counsels of perfection
to all his followers in general: " He who can take, let him take
it "; " If thou wilt be perfect." When, however, we consider
particular cases, we see that many are debarred as a matter
of fact from embracing the religious state. Many find them-
selves in a fixed position in life with duties to be performed
towards parents, relations, and others, which will not allow
of their abandoning the world. Many more are unsuitable by
character and temperament for the religious life. None of
these can properly be said to have a divine call to the religious
state, for when God gives a call he provides the necessary
means for following it. There are others whom God calls in
wonderful and different ways, making known his will to them
sometimes in an extraordinary manner, more often by slowly
developed inclinations and desires to forsake all and give them-
selves to him. The question arises whether such a divine
vocation is a necessary condition for lawfully entering into
religion, and whether one who felt himself called would sin
if he neglected to follow the call.
Anyone who is free and who wishes to enter religion to be
able to do more good, or to save his soul with greater security,
is in fact called by God, for such desires are special graces
given by God, and so they are signs of a divine vocation. So
that all who have the aptitude, are free, and are led to religion
by supernatural motives of seme sort, are divinely called by
God. One who entered religion from merely natural motives
would probably soon find that he had made a mistake, and would
return to the world. However, if such a one chose to rectify
his intention and remained in religion to do good and to save
his soul, he would not commit sin. He embraces a more
perfect state of life, and if he does what in him lies, God will
give him abundant grace to live a good religious life. Of
course, sin is committed by one who enters religion from merely
natural motives, and does not intend to fulfil the obligations
of the state into which he has intruded himself. One who is
called to religion and prefers to remain in the world acts very
40
ON ENTRANCE INTO RELIGION 41
foolishly, throws away a great grace, and may expose his salva-
tion to great danger. If such a one is persuaded that he cannot
save his soul in the world, he commits grave sin by not taking
the necessary means to secure his eternal salvation. If, how-
ever, he hopes with God's grace (which will not be wanting
to him) to lead a good life in the world, he will not commit sin
by not following the divine call; for this is a counsel, not a
command, and counsels do not bind under sin. Some divines
disagree with the foregoing doctrine, but it is supported by
the authority of St Thomas and many approved authors (cf.
Can. 538).
2. As, therefore, the observance of the counsels is not only
lawful but a more perfect state of life, anyone may enter into
religion who is not prevented by some obstacle. Those who
have not possession of their faculties, and children who have
not arrived at the age of puberty, and are still subject to their
parents, cannot enter into religion. In former times parents
used occasionally to present their children to be brought up
in monasteries with the intention of their becoming religious
when they reached the proper age. This custom, however, has
long been abandoned.
Besides safeguarding what the constitutions of each institute
prescribe on the point, the Code declares that the following
cannot be validly admitted to the novitiate:
Those who have formally belonged to a non- Catholic sect.
Those who have not the age required for the novitiate.
Those who enter religion induced thereto by violence, grave
fear, or deceit, or whom the superior receives from the same
motives.
A spouse while the marriage lasts.
Those who are bound or who have been bound by the bond
of religious profession.
Those over whom hangs a penalty on account of committing
some grave crime of which they have been or can be accused.
A Bishop, whether residential or titular, although only
designated by the Roman Pontiff.
Clerics who, by an arrangement of the Holy See, are bound
by an oath to work for the benefit of their diocese or mission,
for the time during which the obligation of the oath lasts.
The following are admitted unlawfully but validly:
Clerics in sacred orders without the local Ordinary being
consulted, or against his will, because their departure would be
to the great loss of souls, and this loss cannot otherwise be
avoided.
42 DUTIES ATTACHED TO STATES AND OFFICES
Those in debt who are not solvent.
Those who are liable to render accounts or who are implicated
in other secular business from which religion may have to fear
lawsuits and troubles.
Children who ought to assist parents that is, father, mother,
grandfather, or grandmother placed in grave necessity, and
parents whose care is necessary for the support and education
of children.
Those destined for the priesthood in religion, but who are
debarred from it by irregularity or other canonical impediment
(Can. 542).
3. Girls may not be admitted to the novitiate or be professed
before they have completed their fifteenth year, and before
doing so they must be examined by the bishop or by someone
deputed by him as to whether they know the grave character
of the step they are about to take, and whether they are acting
of their own free and unfettered will (Can. 552).
4. Boys cannot be lawfully admitted into any order or con-
gregation before the superiors thereof have received from the
Ordinaries of their place of birth and of any place where they
have lived for more than a year after attaining their fifteenth
year testimonial letters bearing witness to their having the
qualifications necessary for entering religion. 1 By the common
law a full uninterrupted year of probation must be spent by
the candidate for religion in the house of the novitiate. Al-
though the novice has not yet taken the vows of religion,
he is subject to the authority of the superiors of the order and
is bound to obey them.
1 S.C. super Stat. Reg., January 25, 1848; can. 544.
CHAPTER III
ON RELIGIOUS PROFESSION
i. PROFESSION is the promise lawfully made and accepted by
which a religious binds himself to observe the vows of poverty,
chastity, and obedience, according to the constitutions of his
order.
For the validity of any religious profession whatever it is
required :
(1) That he who makes it be of the legitimate age, so that
he must have completed for the temporary profession, his
sixteenth year, and for the perpetual profession whether
solemn or simple, his twenty-first year.
(2) That the legitimate superior according to the constitu-
tions admit him to profession.
(3) That it be preceded by a valid novitiate according to the
terms of Ganon 555.
(4) That the profession be free from violence, grave fear,
or fraud.
(5) That it be expressed in formal terms.
(6) That it be received by the legitimate superior according
to the constitutions, either personally or by delegate.
(7) For the validity of the perpetual profession, whether
solemn or simple, it is required besides that it be preceded by
a temporary simple profession. Except in the case of a pro-
fessed religious who joins another institute, in every order
with solemn vows both of men and of women, and in every
congregation with perpetual vows, the perpetual vows, whether
solemn or simple, must be preceded by the profession of simple
vows, which the novice on the completion of his novitiate shall
make in the novitiate house itself, this profession is valid for
three years, or for a longer period if the subject requires more
than three years to attain the age prescribed for perpetual
profession, unless the constitutions require annual profession
(Can. 572-574).
Simple profession, whether temporary or perpetual, renders
acts contrary to the vows illicit, but not invalid, unless it be
otherwise formally expressed; while solemn profession renders
such acts also invalid if they can be nullified (Can. 579).
43
CHAPTER IV
ON RELIGIOUS POVERTY
i . POVERTY in general is the want of temporal goods that have
a money value. It is not a virtue of itself, but rather a physical
defect, for a suitable provision of temporal goods is very useful
and necessary for men to lead a decent life. Poor human nature,
however, is inclined to attach itself too much to wealth, and
for the sake of wealth to forget why man was created by God
and placed in this world. Jesus Christ taught that detachment
from worldly possessions was a necessary condition for being
his disciple: " Every one of you that doth not renounce all
that he possesseth, cannot be my disciple." 1 And for such
as were not content to follow him in the ordinary way of the
observance of the Commandments, but aimed at perfection,
he proposed not only detachment from wealth or spiritual
poverty, but actual poverty, the actual renunciation of wealth
for his sake in order to imitate him more closely: " If thou wilt
be perfect, go, sell what thou hast, and give to the poor, and
thou shalt have treasure in heaven; and come, follow me." 2
Hence voluntary poverty ^ in imitation of Jesus Christ is the
foundation of the religious state. Voluntary poverty, however,
does not constitute the essence of religious perfection; all
Christian perfection consists in charity, to which poverty is
but a means. Hence there is not an absolute and uniform
standard of religious poverty, but it varies with the different
ends which religious orders propose to themselves. Indeed,
religious poverty is personal; it is the voluntary renunciation
of personal and individual wealth, so that the love of wealth
may not be an obstacle to the perfect following of Christ. Its
essence consists in the renunciation of personal and independent
ownership and use of property, for this it is which constitutes
a snare for men's affections and a hindrance to perfection.
So that religious poverty does not of itself prevent property
being owned in common by religious, and if the end for which
an order was founded requires it, there is nothing to prevent
it having large possessions in common, provided that the indi-
vidual religious practises poverty and is imbued with its spirit.
1 Luke xiv 33. a Matt, xix 21.
44
ON RELIGIOUS POVERTY 45
The effects of the vow of poverty depend to a great extent
on the rules and constitutions of the various religious orders
and on the positive law of the Church. The chief distinction
is that between solemn and simple vows of poverty, due to
positive ecclesiastical law. The legal effects of a solemn vow
of poverty are to render the religious incapable of individual
and personal ownership of any property that has money value.
So that after taking a solemn vow of poverty the religious cannot
own any property in his own personal right. As a member of
a religious community he may be a joint owner of vast posses-
sions, but individually he is incapable of having anything as
his own.
Ownership may be absolute or qualified. Absolute owner-
ship is the moral right to dispose of property and of all its uses
for one's own advantage. Qualified ownership is the right to
dispose of the property or of its uses for one's own advantage.
Divines call the qualified ownership of the thing itself direct
ownership, and the qualified ownership of its uses they call
indirect ownership. A religious, even though solemnly pro-
fessed, retains his personal rights to life, good name, and honour ;
he can still dispose of his personal actions, such as the cele-
bration of Mass, and such personal rights as that of presenting
to a benefice ; he may own a relic and dispose of it by gift, for
it has no money value. As a solemnly professed religious is
incapable of owning property in his own right, so he cannot
acquire it for himself; whatever he gains by his labour, or
whatever comes to him by gift or inheritance, becomes the
property of the community to which he belongs; " whatever
a monk acquires he acquires not for himself, but for his monas-
tery," as the old adage had it. By the special constitutions of
their respective orders, Capuchins, Observantines, and professed
Jesuits cannot take property, even in the name and for the
benefit of the community to which they belong, if it come to
them by any hereditary title or by operation of law. They
may, however, take gifts and legacies, and these become the
property of their communities (Can. 582).
The simple vow of poverty does not deprive the religious
of the direct, but of the indirect, ownership of property; so
that he cannot lawfully use or dispose of anything that has
a money value without the leave of his superior. Notwith-
standing, then, the simple vow of poverty, religious retain the
direct ownership of all the property that they had before pro-
fession, and of all that comes to them afterwards by any legal
title or gift.
46 DUTIES ATTACHED TO STATES AND OFFICES
Several Canons of the new Code affect the matter of religious
poverty. By Canon 568, if during the novitiate a novice in
any way whatever renounces his benefices or his property or
encumbers them, such a renunciation or encumbrance is not
only illicit but also null and void.
Canon 569 prescribes: Sec. i. Before the profession of
simple vows, whether temporary or perpetual, the novice must
cede, for the whole period during which he will be bound by
simple vows, the administration of his property to whomsoever
he wishes, and dispose freely of its use and usufruct, unless
the constitutions determine otherwise.
Sec. ii. If the novice, because he possessed no property,
omitted to make this cession, and if subsequently property
come into his possession, or if, after making the provision,
he becomes under whatever title the possessor of other pro-
perty, he must make provision, according to the regulations of
Sec. i, for the newly acquired property, even if he has already
made simple profession.
Sec. iii. In every religious congregation the novice, before
making profession of temporary vows, shall freely make a will
of all the property he actually possesses or may subsequently
possess.
While safeguarding this latter canon, Canon 580 prescribes
that all those who have made profession of simple vows, whether
perpetual or temporary, unless the constitutions declare other-
wise, retain the ownership of their property and the capacity
to acquire other property. But whatever the religious acquires
by his own industry or in respect of his institute, belongs to the
institute.
As regards the cession or disposition of property treated of
in Canon 569, sec. 2, the professed religious can modify the
arrangement, not, however, of his own free choice unless the
constitutions allow it, but with the permission of the Superior
General, or, in the case of nuns, of the local Ordinary, as well
as with that of the Regular Superior if the monastery be subject
to regulars; the modification, however, must not be made,
at least for any considerable part of the property, in favour of
the institute ; in the case of withdrawal from the institute this
cession and disposition ceases to have effect.
Except within sixty days preceding the .solemn profession,
the professed of simple vows cannot validly renounce his
property, but within this time, he must, saving special indults
from the Holy See, renounce in favour of whomsoever he
wishes all the property which he actually possesses on condition
ON RELIGIOUS POVERTY 47
of his profession subsequently taking place. The profession
having been made, the necessary measures must be immediately
taken to insure that the renunciation be effective also according
to the civil law (Can. 581).
After profession of solemn vows, likewise without prejudice
to special indults of the Apostolic See, all the property which
comes in whatever manner to a regular
(1) In an order capable of ownership, goes to the order,
to the province, or to the house, according to the constitutions :
(2) In an order incapable of ownership, such as the Capu-
chins, it becomes the property of the Holy See (Can. 582).
Those who have made profession of simple vows in any
religious congregation:
(1) May not abdicate gratuitously the dominion over their
property per actum inter vivos. This phrase is technical, and
signifies any way of disposing of property except by will. So
that after profession of simple vows the professed cannot law-
fully make a gift of his property to anyone.
(2) May not alter the will made according to the terms of
Canon 569, sec. 3, without the permission of the Holy See, or if
the case be urgent and time does not admit of recourse to the
Holy See, without the permission of the higher superior, or,
if recourse cannot be had to him either, without the permission
of the local superior (Can. 583).
Within the limits indicated above, a religious, with the leave
of his superior, may lawfully use and dispose of property. In
order to justify such use and to excuse it from sin against the
vow, the presumed leave of the superior is sufficient, which
consists in a reasonably founded judgement that the act con-
templated is not against the superior's wish. Much more will
the actual, virtual, or tacit leave of the superior excuse an act
of ownership on the part of a religious and prevent it from
being a violation of the vow.
2. Sins against poverty are grievous if the matter be con-
siderable. The measure as to what matter is considerable is
the same here as in theft, for just as the sin of theft consists
in taking away the property of another against his reasonable
wish, so a sin against religious poverty consists in the use,
disposal, or acceptance of property contrary to one's promise to
God and the wish of religious superiors. The absolute sum
which is necessary and sufficient for a mortal sin against the
vow in all cases will be one pound sterling, and less will be
sufficient if the community whose property is used or disposed of
without leave is poor. Divines, however, allow that a moder-
48 DUTIES ATTACHED TO STATES AND OFFICES
ately rich monastery may be considered in this matter as
equivalent to an absolutely rich individual proprietor.
3. In some orders it was customary for the religious to have
money, books, eatables, for their own use, and such allowance
was called the peculium of the religious. Such a practice is
against the purity of religious poverty, and it was forbidden
by the Council of Trent, as well as by several Roman Pontiffs.
Indeed, if it was understood that subjects had the right to
use and dispose of the peculium as they pleased, in perfect
independence of the will of their superior, it would be against
the very essence of religious poverty. In many orders the
custom is still sanctioned of having a peculium in more or less
dependence on the will of the superior.
It is not against poverty to administer money in the name
of another, for such administration is not an act of ownership.
A religious may, then, act as the almoner of another, but he
must not distribute alms in his own name as if the money were
his own. To keep a deposit of money with the obligation in
justice of accounting for it is against religious poverty.
CHAPTER V
THE VOW OF CHASTITY
i. THE Catholic Church, following the teaching and example
of our Lord and of St Paul, esteems very highly the beautiful
virtue of chastity. According to her teaching, the state of
marriage is indeed good, and Jesus Christ raised marriage to
the dignity of a sacrament, but the state of virginity is better.
For such as wish to follow Jesus Christ more closely and to
dedicate themselves wholly to God, celibacy and absolute
chastity are proposed as a counsel of perfection. There is no
fear that the number who embrace this counsel will ever be
so great as seriously to interfere with the proper increase of
the population. There will always be a sufficient number left
in the world to enter upon the married state. Nor is the heroic
renunciation of the pleasures of married life made by religious
lost upon the world. As long as there are numbers of men
and women to be seen who for love of God and chastity lead
solitary lives, it should be more easy for people in the world
to curb their fleshly appetites so as to keep within the bounds
of reason and virtue.
By the vow of chastity the religious promises Almighty God
that he will altogether abstain from all venereal pleasure,
whether of thought or deed. In consequence he is bound
to observe perfect chastity of body and mind, so that any act
which he commits contrary thereto will be a double sin, against
the virtue and against his vow. We saw, when treating of the
Sixth Commandment, that sins by which venereal pleasure is
J * 1
directly sought or consented to are always grave, and so, when
such sins are committed by religious, their grievous malice will
be twofold.
2. One who has taken a solemn vow of chastity is incapable
of contracting a valid marriage by the law of the Church, and
a fortiori he cannot enter on valid espousals. A marriage
contracted and consummated before the taking of a solemn
vow of chastity remains valid, but by ecclesiastical law a mar-
riage which has not been consummated is dissolved by solemn
vows taken in a religious order (Can. 1119). A simple vow
of chastity never annuls a previous marriage, but it makes
' "' 49 4
So DUTIES ATTACHED TO STATES AND OFFICES
the use of marital rights unlawful. It is a disputed point as
to whether a simple vow annuls previous espousals. A simple
vow of chastity certainly makes subsequent espousals invalid,
as being an unlawful promise, and it renders subsequent
marriage unlawful though not invalid, except the simple vow
made in the Society of Jesus, which is a diriment impediment
to marriage by a special privilege of the Holy See.
3 . In order to safeguard the chastity of religious, and to enable
them to lead more quiet and tranquil lives, the law of enclosure
has been introduced. The enclosure in a religious house is
all the space within which the religious may move freely, but
which they may not leave without the required permission,
and to which others are denied access.
The law of enclosure is laid down in detail in the new Code
of Canon Law, Can. 597 ff.
Papal enclosure should be kept in the houses of regulars,
whether of men or women, if they are canonically erected,
even though less than six professed religious live there.
Enclosure should also be kept in the houses of religious
congregations whether of pontifical or diocesan law. The
bishop has authority in this matter, and can enforce his regula-
tions by censure.
Even societies of men or women who live together under
a superior like religious, but without vows, are subject to the
law of enclosure according to Canon 679, sec. 2.
CHAPTER VI
THE VOW OF OBEDIENCE
i. MEN of the world find it difficult to understand how one
man can surrender his liberty and bind himself by vow to obey
another. And yet this counsel of perfection, too, is contained
in the life and teaching of the divine Founder of the Church.
He did not intend that all the members of his Church should
be equal; he placed some in authority over the others, and he
gave them power to teach, instruct, correct, and guide those
who were subject to them. He therefore laid a duty of obedi-
ence to spiritual rulers on all the faithful. Those who were
content to observe the Commandments were bound only to
obey such positive precepts as the rulers of the Church judged
it expedient to impose on all Christians ; but those who aimed
at perfection became as a consequence subject to the teaching
and authoritative guidance of their rulers in matters which
pertain to perfection as well. Those who were content with
observing the Commandments reserved some liberty for them-
selves ; those who aimed at Christian perfection gave themselves
wholly to obedience after the example of him who was obedient
even unto death. The prelates of the Church are therefore
the superiors of religious men and women, and even if some
are exempt in some matters from the jurisdiction of the ordi-
naries, all are subject to the Pope, not only as the Supreme
Head of the Church on earth, but as their highest religious
superior. 1 In approving of a religious order or congregation
the Pope and the bishops delegate the necessary authority
to the lawful superiors of the order, and give them power to
command their subjects in all that pertains to the observance
of the rule.
A religious, therefore, who takes a vow of obedience binds
himself thereby to obey all the precepts which his superiors
lay upon him according to the rule of the order.
In order, then, that the obligation of the vow may become
operative, a precept must be given by the superior. And
here we must distinguish between the vow and the virtue of
obedience. The virtue of obedience inclines to the most per-
1 St Thomas, 2-2, q. 186, a. 5 ; can. 499, sec. i.
Si
S3 DUTIES ATTACHED TO STATES AND OFFICES
feet conformity of will and judgement of the subject with the
will and judgement of the superior. A subject who has the
virtue of obedience will strive to execute the known will of
his superior without waiting for a strict command. The
obligation of the vow is not so extensive as the virtue of
obedience. The vow will be saved if precepts are externally
executed, for, according to the more common opinion, the
vow of obedience does not extend to merely internal acts.
The superior's authority is limited and defined by the rule,
and so the subject is only bound to obey such commands of the
superior as are sanctioned by the rule directly or indirectly.
It is not, however, necessary that the precept should be ex-
pressly sanctioned by the rule in order to enable a superior to
impose it with authority: it is sufficient if it be implicitly and
indirectly sanctioned, as it will be if its imposition conduces
to the better and more perfect observance of the rule.
2. Violations of the vow of obedience are grave sins of
themselves. However, in practice, sins of religious against
obedience are seldom mortal, for want of sufficiently grave
matter, or because the superior does not intend to impose a
grave precept. Such sins will be mortal when in grave matter
the superior commands anything to be done in virtue of
obedience, or when serious harm follows from disobedience,
or when a subject refuses to obey from formal contempt of
authority, wishing to exercise and display his independence.
When the vow of obedience is violated, there is a double
malice in the sin. Such a violation is a sin against the vow,
and thus it is a sacrilege ; and it is also a sin against the Fourth
Commandment of the Decalogue, which prescribes obedience
to be rendered to all lawful superiors. Such lawful superiors
are armed with spiritual jurisdiction delegated to them by
ecclesiastical authority, or at least they have the natural authority
which belongs to all rulers of a community, great or small.
Superioresses of nuns have this natural authority, and so they
can impose even grave precepts of obedience on their subjects,
although as women they cannot have ecclesiastical jurisdiction.
BOOK II
THE SACRAMENTS IN GENERAL
CHAPTER I
THE NATURE OF A SACRAMENT
i. MERELY external religion, without devotion of mind and
heart to the service of God, is hypocrisy, but though we should
serve God in spirit and in truth, external rites and ceremonies
are not excluded from religion. On ithe contrary, they form
an essential part of it. Man is composed of body and soul;
both come from God, and both should share in the worship due
to their Creator. Besides, internal religion will be faint and
likely to evaporate altogether, unless it sometimes finds ex-
pression in outward acts. God has provided for- these wants
of human nature by instituting the sacred rites, which we call
sacraments, as essential parts of true religion. They serve
also as signs by which the faithful are known to and united
among themselves and distinguished from those outside the fold.
They serve, too, as an external profession of faith, and as a
means of practising the very salutary virtue of humility, inas-
much as we are compelled to seek in external rites the spiritual
help of which we stand in need, whereby intellectual pride is
humbled.
There were sacraments under the Old Law as there are
under the New, although the latter are far more efficacious
than the former. As expressing what is common to the sacra-
ments of Judaism and Christianity, a sacrament may be defined
to be an outward sign of inward grace. A sacrament, then,
is some outward rite or ceremony instituted by God, to show
forth and make known the grace which he thereby bestows
on the soul of the recipient. Thus circumcision signified
separation from the idolatrous world, incorporation among
the people of God, and the infusion of grace into the soul for
the remission of original sin. The sacraments of the Old Law
produced their effects by exciting the faith of the ministers
and recipients of them and by the profession of faith in the
coming Redeemer which their use contained.
The sacraments of the New Law were instituted by Christ
53
54 THE SACRAMENTS IN GENERAL
our Lord, and they confer the grace which they signify, not on
account of the meritorious dispositions with which they are
ministered or received, but on account of their dignity and
intrinsic excellence. They were instituted by Christ, they are
administered in his name and by his authority, and thus they
are in a true sense the actions of Christ our Lord executed by
his ministers. Divines express this by saying that the sacra-
ments of the Christian Church confer grace ex opere operate,
while those of the Old Law produced it ex opere operantis.
A sacrament, then, of the New Law may be defined to be an
outward sign of invisible grace instituted by Christ to confer
the grace which it signifies.
There are certain rites and ceremonies in use in the Church
which are called sacramentals. Of these we may mention the
consecration of abbots, the first tonsure of clerics, the sacring
of kings, the blessing of chalices and bells, holy water, Agnus
Dei, scapulars, and many more. They are called sacramentals
because they are sacred rites which, if properly used according
to the mind of the Church, confer spiritual graces on the soul
of him who uses them. They do this through the approbation
and blessing of the Church, the Spouse of Christ, whose
prayers and desires Christ always listens to, and through the
good dispositions of those who use them. They thus differ
from sacraments, as also in the grace which they produce.
They confer actual graces, special helps to do good and avoid
evil, given by God in answer to the prayers of the Church and
the pious desires of those who use them properly (Can. 1144).
2. The Council of Trent defined as of faith that there are
seven sacraments instituted by Christ our Lord: Baptism,
Confirmation, the Eucharist, Penance, Extreme Unction, Orders,
and Matrimony ; that these sacraments contain the grace which
they signify, and that they always confer grace on all those
who receive them and put no obstacle to their effect. The
sacraments, then, require certain dispositions on the part of
the recipient in order that they may produce their effect. They
will be validly received if nothing that is essential be wanting
to them, but in order to produce their effect when they are
received the recipient must have the required dispositions.
I may apply a match to a faggot of wood, but this will not take
fire if it is sodden with water. Similarly, if an adult asks for
Baptism and is rightly baptized the sacrament will be validly
received, but if the recipient has no faith or no sorrow for his
sins the Baptism will indeed imprint a character, but it will
not infuse sanctifying grace in the soul. In such a case as this
THE NATURE OF A SACRAMENT 55
the sacrament is validly but not licitly received ; it is said by
divines to be unformed, not formed.
3. The Council of Trent also defined it to be of faith that
the three sacraments, Baptism, Confirmation, and Orders,
whenever they are validly received, imprint on the soul a cer-
tain spiritual mark which is called a character. This character
serves to distinguish in the eyes of God and of his saints those
who have received the sacrament in question; it is indelible,
and prevents the sacrament from being received a second time.
It is, however, compatible with the presence of mortal sin in the
soul, so that, as was said above, a valid sacrament imprints its
proper character even when on account of some obstacle in
the recipient it is unformed and does not convey sanctifying
grace to the soul.
The question here occurs whether a valid but unformed
sacrament will afterward produce grace in the soul, if and when
the obstacle be removed. The common opinion of Doctors
and divines is that it will do so in the case of the three sacra-
ments which impress a character on the soul. This opinion is
founded on the tradition of the Church and on what is to be
expected from the goodness of God and the nature of the
sacraments. A cause which is in existence, but which was
hitherto prevented from producing its full effect on account
of some obstacle in the way, will produce that effect when the
obstacle is removed. Many divines hold the same doctrine
of reviviscence concerning the sacraments of Matrimony and
Extreme Unction, which may not be repeated at the will of
the recipient. Whether it is also applicable to Penance is a
much disputed point, while it is commonly denied that the
sacrament of the holy Eucharist can afterward produce its effect
if it was unformed when received.
4. The sacramental grace which is conferred by the sacra-
ments is habitual or sanctifying grace as directed toward the
particular end for which the sacrament from which it flows
has been instituted. Together, then, with the grace which
justifies the sinner, or which increases the sanctifying grace
of the soul in friendship with God, a sacrament gives a title
to receive from God special help or actual graces when they
are required by the recipient of the sacrament. Thus, the
sacrament of Penance, if worthily received, infuses sanctifying
grace into the soul by which the sins confessed are blotted out,
and, moreover, it gives the sinner a title to receive actual
graces in time of temptation, so as to enable him not to yield.
In the same way the holy Eucharist increases sanctifying grace
56 THE SACRAMENTS IN GENERAL
within the soul, making it more holy and more pleasing in the
sight of God, and fresh help is given to enable it to remain
steadfast in the friendship of God.
The sacraments of Baptism and Penance, which remit sin
and give sanctifying grace to souls that were deprived of it,
are called sacraments which give the first grace, or sacraments
of the dead, inasmuch as they give spiritual life to those who
were spiritually dead; while the sacraments which should only
be received by such as are already in the state of grace are said
to confer the second grace, and are called sacraments of the
living. If the soul is already justified and in the state of grace,
sacraments of the dead confer second grace; while Extreme
Unction may, as we shall see, confer the first grace, although
it is primarily a sacrament of the living; and it is a probable
opinion that the other sacraments may per accidens confer the
first grace when received in good faith by the sinner. Inas-
much as a sacrament confers grace in virtue of the worth and
dignity of the sacred rite itself, the quantity of grace given will
per se be the same for all who receive it. However, per accidens,
since a cause acts with greater or less efficacy in proportion to
the dispositions of the subject on which it works, so a sacra-
ment will give more grace to such as receive it in better dis-
positions. It may, then, very well be that more grace will be
obtained from Holy Communion received two or three times
a week with better dispositions than from daily Communion
made without fervour.
5. The Council of Trent anathematizes anyone who shall
say that the sacraments of the New Law are not necessary for
salvation, though it also teaches that not all the sacraments
are necessary for every individual. Under each sacrament it
will be explained how far it is necessary and in what sense.
CHAPTER II
THE MATTER AND FORM OF THE SACRAMENTS
i. THE decree of Eugenius IV, for the instruction of the
Armenians, lays down that all the sacraments consist essentially
of three things: the matter, the form, and the minister who
makes the sacrament with the intention of doing what the
Church does. And, it adds, if any one of these elements be
wanting the sacrament is not made. The sacraments, then,
are not simple, but composite signs, which consist of two
distinct elements. One of these 1 in technical language is
called the matter, because it is that portion of the sacramental
sign which is the most indeterminate with respect to conveying
the meaning which the sacrament signifies. This matter is
called remote when considered by itself; it is called proximate
when it is taken and applied by the minister to the making of
the sacrament. The second element consists of words, and
this part is called the form of the sacrament, because the words
determine the matter to the more complete signification ex-
pressed by the whole sacramental sign. Thus in Baptism the
water, considered by itself, is the remote matter of the sacra-
ment and does not necessarily signify washing; water may be
used to slake the thirst, and for many other purposes. The
application of the water to the person to be baptized is the
proximate matter, and when this is done with the form of words,
" I baptize thee in the name of the Father, and of the Son, and
of the Holy Ghost," the whole composite rite assumes a religious
aspect, and signifies, according to the intention of the minister,
the washing away of sin from the soul.
2. The minister of a sacrament must necessarily use the
matter and form which were instituted by Christ, for he alone
as God- Man has the power to cause grace to be conveyed to the
soul by means of sacred rites.
There must be no change made in the matter and form of
the sacraments; not even the Church's authority suffices for
that. If a substantial change be made either in the matter or
in the form, the sacrament is destroyed. The matter will be
substantially changed if in the estimation of ordinary men it
is no longer the same, but something else. Thus, if the wine
57
58 THE SACRAMENTS IN GENERAL
has become vinegar, it cannot be used as the matter of the
Eucharist. The form will be substantially changed if the sense
is no longer the same, but different. Thus, " I baptize thee in
the name of the Father, and of the Son, and of the Holy Ghost "
is the divinely instituted form for Baptism, and if the minister
baptize with the words, " I baptize thee in the name of the
Trinity " it is no sacrament, because of the substantial change.
It is not lawful to make any change in the matter and form of
the sacraments, but if an accidental and not a substantial change
be made, so that the matter and the sense of the form remain
the same, the sacrament will not be rendered invalid, as a
general rule. However, a change which in itself is slight and
accidental may be made substantial by the perverse intention
of the minister. For the sense may then be quite different,
and that different sense is expressed in the form. Thus Pope
Zacharias wrote to St Boniface that Baptism administered with
the form, Baptizo te in nomine Patria, et Filia, et Spiritus
Sancta, is valid when the mistakes are made through ignorance
of Latin, and not through heresy or a perverse intention. 1 If,
then, such changes were introduced to give expression to heresy,
the sense would be substantially changed and the form would be
invalidated. Similarly, if Baptism were given with the form
" I baptize thee in the name of the Father, and of the Son, and
of the Holy Ghost, and of the Blessed Virgin Mary," the
sacrament would be invalid if the minister intended to baptize
in the name of the Blessed Virgin as of one of the Persons in
the Godhead; if the addition was made through mistaken
devotion to the Mother of God the sacrament would not be
invalid. On the principles just stated Leo XIII decided that
Anglican ordinations are invalid.
3. Except in case of necessity it is not lawful in the adminis-
tration of the sacraments to use only probable matter or a
probably valid form. An opinion contrary to this doctrine
was condemned by Innocent XI, March 2, 1679. Justice
and charity, which demand that the minister confer a sacra-
ment validly, and do nothing to imperil its validity, require
that he should use only certain matter and the certainly valid
form as far as possible. Reverence also for the sacrament
and for Christ, who instituted it, makes it necessary to take
all due care that when a sacrament is administered it should
be properly and validly administered. If, however, in a
particular case only doubtful matter is at hand, and unless
the sacrament is at once administered, the subject may be
1 C. 86, d. iv, de Consec.
MATTER AND FORM OF THE SACRAMENTS 59
altogether deprived of it, then such doubtful matter may be
used, since the reasons to the contrary then cease to be valid,
because the sacraments were made for the benefit of man,
not man for the sacraments.
4. As the matter and the form of a sacrament constitute
together one composite sign of grace, there must not be such
an interval between them as to destroy their unity. In the
holy Eucharist the form requires that the matter should be
physically present at the time when the words of consecration
are uttered. In the other sacraments it is not necessary that
the matter and form should be put at the same time in order
that the sacrament may be valid; it is sufficient for the validity
if there be a moral union between them so that according to
a moral estimate they form one whole. Thus in Baptism,
although the rubrics prescribe that the words should be said
while the water is poured on the head, yet if a brief interval,
say the space of a Pater or of an Ave, separate the matter and
the form, the sacrament will still be valid.
The matter and the form should be applied by one and the
same minister. Baptism would not be valid if one poured the
water while another pronounced the words. In the Eucharist,
however, and in Extreme Unction there are more than one
form, each with its separate matter, and the sacrament would
be valid if one minister consecrated one species or anointed
one sense and another finished the rite. This, however, is
only lawful in case of necessity, nor is it lawful for many
ministers to make one sacrament at the same time, except
when newly ordained priests celebrate Mass with the Bishop
who has ordained them.
5. The sacraments should ordinarily be administered abso-
lutely according to the manner in which they were instituted
by Christ. If, however, in any particular case it is doubtful
whether a sacrament was validly administered and there will
be danger of grave spiritual loss to the subject unless it is
repeated, it may and should be repeated conditionally. The
condition should be expressed when the rubrics require it,
as in the case of Baptism and Extreme Unction. Otherwise
the condition may be implicit, and it will be sufficient if the
minister intend to do his duty according to the institution of
Christ and the laws of Holy Mother Church.
The Ritual expressly warns the minister that the conditional
form for administering Baptism is not to be used at random or
lightly, but with prudence, when after diligent inquiry there
is a probable doubt whether the sacrament was validly con-
60 THE SACRAMENTS IN GENERAL
ferred before. The same principle is to be applied to the
conditional administration of the other sacraments. 1
Except in the case of Matrimony, which is a contract and
follows in this the rules affecting other contracts, a sacrament
cannot be validly administered under a condition which regards
a future and uncertain event. The reason is because such
a condition would of its nature suspend the effect of the sacra-
ment, and when the condition is verified the matter and form
no longer exist and cannot now produce their effect. Thus
Baptism conferred on a child under the condition, " If you
attain the age of reason, " would be null and void. On the other
hand, a sacrament conferred under a past or present condition
will be valid if the condition be verified ; it will be invalid if the
condition be not verified. We have already seen when it is
lawful to administer a sacrament conditionally. There will be an
obligation to do so whenever justice and charity due to our
neighbour require it in order to prevent his spiritual loss, or
when reverence for the sacraments and for Christ, who insti-
tuted them, makes it necessary in order to avoid their invalid
administration.
1 Can. 733, sec. 2.
CHAPTER III
THE MINISTER OF THE SACRAMENTS
THE sacraments were instituted by Christ as so many channels
or conduits by which he might convey to the souls of men
the fruits of his passion and death. They are administered
in his name and by his authority, and so Christ himself is the
principal minister of the sacraments. However, he deigns to
make use of men as his instruments for administering them,
and it is of these secondary ministers who make the sacraments
in the name of Christ that we have here to treat. In Matrimony,
as we shall see, the parties to the contract themselves are the
ministers to each other of the sacrament, and anyone who has
the use of reason may confer Baptism validly. The minister
of the other sacraments, at least for their lawful administration,
must have the twofold spiritual power of order and jurisdiction
which was given by Christ to his Church. We shall see, when
treating of the several sacraments, how far order and juris-
diction are also required for their valid ministration. In the
following sections we will lay down the conditions and dis-
positions which a minister of the sacraments should have to
perform his office worthily.
SECTION I
The Attention and Intention of the Minister
i. While administering a sacrament the minister should
attend to what he is doing and remember that he is engaged
in a religious function. If he voluntarily allows his mind to
wander on other and profane matters, he is guilty of irreverence
toward God for whose worship the sacraments were instituted
and should be administered. This irreverence, however, is
not grave in itself, probably not even if a priest is voluntarily
distracted during the consecration in Mass, so that voluntary
distractions while administering the sacraments are only venial
sins. Attention, then, or advertence of the mind to what is
being done, is not necessary for the validity of a sacrament;
only three things are necessary for its validity, as we saw above
61
6a THE SACRAMENTS IN GENERAL
the matter, the form, and the intention of the minister to
do what the Church does.
2. Intention is an act of the will directing an action to a
certain end. Divines distinguish between an actual, a virtual,
an habitual, and an interpretative intention. When a minister
wishes here and now to administer a sacrament, he has an
actual intention to perform the rite. If he had such a wish
and in consequence set about his task, but became distracted
while administering the sacrament, he has a virtual intention.
An habitual intention is a wish to do something, which wish
has not been retracted but which does not issue in action. An
interpretative intention is a wish which would be conceived
if one thought of it, but for want of thinking of it is not
elicited.
An intention of some sort in the minister is necessary for
the validity of a sacrament; the Council of Trent anathematized
anyone who should say that there is not required in ministers
while they make and confer the sacraments at least an intention
to do what the Church does. 1 Now the Church by her ministers
and through the sacraments baptizes, confirms, absolves from
sin, and so forth ; so that the minister while making a sacrament
must intend to baptize, confirm, absolve. However, it is not
necessary to have an actual intention of doing this ; distractions
cannot always be avoided, and always to have an actual inten-
tion while engaged in conferring the sacraments would be an
impossible requirement. Nor would an habitual intention
suffice, for it does not exist while the action is put, nor has
it any effect upon the action. Much less would an interpre-
tative intention be sufficient. It remains, then, that a virtual
intention is necessary and sufficient in the minister while he
makes a sacrament.
3. Ambrosius Catharinus, Salmeron, Contenson, and other
theologians thought that an intention to perform the external
rite of a sacrament, even if the minister internally expressly
withheld his intention to do what the Church does, would
be sufficient for the validity of a sacrament. Such an intention
to perform the merely external rite while internally withholding
the intention to baptize, absolve, and so forth, is called an
external intention. The common opinion is that such a merely
external intention is not sufficient, but that an internal intention
or a positive wish to baptize, absolve, and so forth, is necessary
for the validity of the sacrament. On December 7, 1690,
Alexander VIII condemned the proposition that Baptism is
1 Sess. vii, c. n.
THE MINISTER OF THE SACRAMENTS 63
valid when it is conferred by a minister who observes all the
external rite and form of Baptism but inwardly in his heart
makes this resolution, " I do not intend to do what the Church
does." This decree would seem to settle the matter, for it
seems to have been directed against Fr. Farvacques, O.S.A.,
who, in a little book published ten years earlier, had defended
the opinion, of Catharinus and Salmeron. A few theologians
even subsequently to the decree of Alexander VIII have
defended the same view, on the ground that the decree was
aimed at the Lutheran error which asserted the validity of the
sacraments even when administered in joke. No Catholic,
however, defended the Lutheran doctrine at the time, and it
had already been condemned by the Council of Trent. We
must, then, at least say with Benedict XIV that the condemna-
tion of the above proposition inflicted a serious blow on the
opinion of Catharinus, and no theologian of note now defends
it. The Church does not merely apply the matter and form
when ministering the sacraments, but by means of those ex-
ternal rites she intends to do what Christ instituted the sacra-
ments to effect that is, to baptize, to absolve, and so forth.
An intention, then, to do this to baptize, to absolve, or an
internal intention is necessary for the validity of a sacrament.
4. It is not sufficient for the minister while making a sacra-
ment to have a vague intention of conferring it on somebody
or other, or of taking and applying some matter in general for
the making of the sacrament. The intention must be definite
in its scope and object, otherwise there is no reason why this
matter should be taken rather than that, or why one person
should be benefited rather than another. An intention, there-
fore, to absolve anyone in a crowd who may need it, or to
consecrate five hosts out of a larger number on the altar would
not be effective.
Neither ignorance nor mistake on the part of the minister
about the nature or effect of a sacrament makes it invalid.
Baptism conferred by one who knows nothing of its nature,
or by one who denies baptismal regeneration, is valid, provided
that the three essential elements of the sacrament are not
wanting.
Difficulties may arise from the fact that a minister while
making a sacrament had mutually contradictory intentions.
Thus an heretical priest while saying Mass may have the in-
tention to do what Christ instituted but not to offer sacrifice,
as he denies that Mass is a sacrifice. In this and in similar
cases divines give the following rules for discovering whether
64 THE SACRAMENTS IN GENERAL
the sacrament is effected or not. When the contradictory
intentions are present in the mind at the time of making the
sacrament, that will prevail which is the stronger, and that
is the stronger which would be chosen by the minister if he
realized the contradiction. So that, in the example given, the
heretical minister will actually say Mass if the intention to do
what Christ instituted be the prevailing and stronger one; he
will not say Mass if his intention not to offer sacrifice is the
stronger. When the contradictory intentions follow one
another, the last will ordinarily prevail, unless the former
revoked all subsequent intentions.
5. Except in case of necessity the minister of a sacrament
may not use probable opinions with reference to what belongs
to the validity of the sacrament. As we saw when treating of
the matter and form, it would be against the reverence due
to the sacraments, against justice, and against charity, if the
minister exposed the sacraments to the danger of nullity through
following a merely probable opinion. He is bound to follow
the safer opinion when he can do so in what relates to the
validity of the sacraments. In questions, however, which only
touch the lawfulness or the integrity of the sacraments, and
when the Church supplies what is wanting in order that the
sacrament may be valid, which she sometimes does, as we
shall see later, there is no reason why the minister should not
use probable opinions. The same doctrine applies also to the
recipient of the sacraments.
SECTION II
The Faith and Holiness of the Minister
i. Neither faith nor the state of holiness and friendship
with God is necessary in the minister for the validity of the
sacraments which he confers. This is of faith, and it was
defined by the Council of Trent. The sacraments do not
depend for their effect on the good or bad dispositions of the
minister, as they derive their efficacy from the institution and
the merits of Christ. They produce their effect ex opere
operate, not ex opere operantis. However, one who has been
consecrated and deputed to be a dispenser of the mysteries
of God is bound to fulfil his office in a worthy manner. Holy
things must be treated holily. The minister acts in the name
of Christ ; he becomes the instrument of Christ for the sanctifi-
cation of the souls of others by means of the sacraments; he
would be greatly wanting in reverence and decency if, while
THE MINISTER OF THE SACRAMENTS 65
engaged in so holy a task, his own conscience were stained
with grievous sin. An enemy of God himself, he is guilty of
great presumption in undertaking such holy functions. A
consecrated minister who solemnly administers a sacrament
while conscious of being in a state of mortal sin certainly sins
grievously. The question whether a lay person who in case
of necessity baptizes another or contracts marriage in the state
of sin himself sins grievously, as being an unworthy minister
of the sacrament, is much disputed among divines. Many
weighty authorities excuse such a minister from grave sin
because he is not under so strict an obligation to put himself
in the state of grace before administering a sacrament as is
one who has been set aside and consecrated to that office. All
citizens are bound to defend their country when threatened,
but there is a special obligation to do so incumbent on those
who, like soldiers, have undertaken that duty. Similarly, all
should indeed treat the sacraments with proper respect, but
consecrated ministers are specially bound to do so while ful-
filling their office. So that it is a probable opinion that a lay
person who baptizes in sin in a case of necessity, or one who
marries and so ministers the sacrament in sin to the other party,
does not thereby sin grievously. For the same reasons it is
also probable that even a consecrated minister who, while in
sin administers Baptism privately in case of necessity does not
sin mortally, for he then acts as a private person, not as a
consecrated minister.
2. A priest who says Mass in the state of mortal sin is thereby
guilty of several grievous sins. He celebrates Mass unworthily,
he receives Holy Communion unworthily, and he gives himself
the sacrament though he knows that he is unworthy to receive
it. Some add a fourth sin, which is committed precisely by
handling and administering the Blessed Sacrament in a state
of sin. It is probable, however, that this last act, though
wanting in due reverence, does not amount to a grievous sin.
All the more is it a safe opinion that deacons and subdeacons
who exercise their functions in a state of sin do not sin grievously
by so doing, nor do Bishops and priests who in sin consecrate
or bless pious objects, or preach the word of God.
Divines are not agreed whether a priest would commit one
sin or as many sins as he administered sacraments unworthily
who in a state of sin should hear many confessions or administer
many Baptisms or other sacraments at the same time. If
there were moral interruptions between the several sacraments,
there would at least be as many sins as interruptions. But if
" 5
66 THE SACRAMENTS IN GENERAL
there were no such moral interruption, it is a probable opinion
that a priest who at one time administers a sacrament to many
only commits one big mortal sin. The sin takes its unity from
the fact that he exercises his office on one occasion unworthily,
an office which he was consecrated to perform in a worthy
manner. It is not, then, necessary for a priest who has sinned
by hearing confessions in sin to say how many persons he has
absolved ; it will be sufficient if he states how often he has heard
confessions in mortal sin.
It will be sufficient for a priest who is in sin to make an act
of contrition before administering any of the other sacraments,
but before saying Mass and receiving Holy Communion it is
necessary for such a one to go to confession. The Council of
Trent, commenting on the precept of St Paul, " Let a man
prove himself, and so let him eat of that bread," says that the
custom of the Church has always interpreted these words as
implying that no one who is conscious of mortal sin ought to
approach Holy Communion without sacramental confession,
however contrite he may feel.' It is, of course, advisable that
this should be done before a minister who is in sin administers
any of the sacraments, though it is only of strict obligation
before saying Mass and receiving Holy Communion.
SECTION III
The Duty of Administering the Sacraments
i . All who have the cure of souls are bound in justice and
in charity to administer the sacraments to the members of their
flock when these need them or ask for them reasonably. The
obligation is principally one of justice, and it arises from the
implicit contract which those who have the cure of souls enter
into on assumption of office. The obligation is a grave one if the
subject is in extreme or grave necessity, and even when there
is no grave necessity one who has the cure of souls would com-
mit serious sin if he frequently refused the sacraments to those
who ask for them reasonably. An occasional refusal in such
cases would not be a grievous sin, as although the spiritual
good of which they are unjustly deprived is considerable, yet
the loss can without much inconvenience be made good at
another time.
The obligation of justice is so strict that those who have the
cure of souls are bound even at the risk of life to administer
the sacraments to their flock in extreme or in grave necessity.
This obligation, however, only extends to those sacraments
THE MINISTER OF THE SACRAMENTS 67
which are necessary for salvation, such as Baptism and Penance;
it does not extend to those which are not necessary, not even
to the holy Eucharist, according to a very probable opinion.
Mortal sin will be committed not only by frequent refusal of
the sacraments to those who ask for them in a reasonable
manner, but also by making one's self difficult to approach
and by an ungracious manner of yielding to reasonable requests,
inasmuch as such methods deter the faithful from exercising
their just rights.
2. Ministers of the sacraments who have not the cure of
souls are bound in charity to administer the sacraments to such
as are in extreme or grave spiritual necessity. This obligation
is less strict than that which lies on those who have the cure
of souls, so that those who have no such cure will only be
bound at the risk of life to administer the sacraments which
are necessary for salvation to those who are in extreme necessity.
But in order that this grave obligation of charity may exist
there must be moral certainty that the person in question is in
extreme spiritual necessity, or in other words, that he is in
proximate danger of damnation unless the sacraments be
administered. There must also be a reasonable certainty that
the attempt to administer the sacraments will be successful;
it would be hard if a minister of the sacraments were bound to
imperil his life for a mere probability of being able to help
another in spiritual distress. Furthermore, before so grave
an obligation can be imposed on anyone it must be morally
certain that he who is in spiritual necessity is unable to help
himself by making an act of contrition for his sins or of perfect
love of God, and that there is no one else who is able and willing
to succour him in his necessity. As all these conditions are
seldom verified in any concrete case, it is apparent that those
who have not the cure of souls will seldom be under a grave
obligation of administering the sacraments to those who are
in extreme necessity at the risk of life.
SECTION IV
The Duty of Refusing the Sacraments to the Unworthy
i. " Let a man so account of us," says St Paul, "as of the
ministers of Christ, and the dispensers of the mysteries of God.
Here now it is required among the dispensers, that a man be
found faithful." 1 As, then, the administration of the sacra-
1 i Cor. iv i, a.
68 THE SACRAMENTS IN GENERAL
ments is entrusted to the ministers of the Church, they must
be faithful to their charge and administer them according to
the intention of Christ and the rules of the Church. These
rules are chiefly contained in the Ritual and in other liturgical
books. The prescribed rites are of grave obligation in serious
matters, for the Council of Trent anathematized those who
should assert, " That the received and approved rites of the
Catholic Church, wont to be used in the solemn administration
of the sacraments, may be contemned, or without sin be
omitted at pleasure by the ministers, or be changed by every
pastor of the churches into other new ones." 1
Ministers are specially required to refuse the sacraments to
such as are unworthy: " Give not that which is holy to dogs,"
said our blessed Lord. 2 The. minister should have positive
reasons for judging that those who ask for the sacraments of
Penance and Orders are worthy to receive them. For the
dispositions of the subject enter into the substance and validity
of Penance, and the duty of seeing that everything is present
which is required for the validity of the sacraments belongs to
the minister of them. Public officials of the Church are con-
stituted by Orders, and the public good requires that only
those who are worthy should be chosen. All lawful subjects
who ask for the other sacraments are presumed to be worthy
unless it is certain that they are unworthy.
With special reference to the holy Eucharist the Ritual lays
down that, " All the faithful are to be admitted to Holy Com-
munion except those who are forbidden for just cause. Those
who are notoriously unworthy are to be refused, such as the
excommunicated, interdicted, and openly infamous, as are
strumpets, those living in concubinage, usurers, wizards,
sorcerers, blasphemers, and other public sinners of that kind,
unless it is certain that they have repented and amended, and
have made satisfaction for the public scandal which they have
given " (Can. 855). However, in the judgement of theologians,
it will be sufficient if such public sinners openly go to confession ;
in this way, according to modern discipline, they will show
their amendment and make satisfaction for the scandal which
they have caused, unless more is required in special cases by
the bishop or by other competent authority.
The Ritual proceeds : " Let the minister also repel secret
sinners when they ask in secret unless he knows that they have
amended; but not when they ask publicly, and cannot be
passed by without scandal." In the latter case public injury
1 Sess. vii, c. 13. 2 Matt, vii 6.
THE MINISTER OF THE SACRAMENTS 69
would be done to the secret sinner, scandal would be given to
others, and other inconveniences would follow, if the sacra-
ments were refused; and these reasons justify the minister in
co-operating materially with the sin of unworthily receiving
the sacraments. Of course, if the minister only knows of the
bad dispositions of the subject from sacramental confession,
he can make no use of his knowledge out of confession.
2. It is specially laid down in the new Code of Canon Law
and in the synods 1 that the priest should strive to induce all
who are going to marry to approach beforehand the sacraments
of Penance and the holy Eucharist. If he does not succeed
in this, he may nevertheless assist at the marriage even though
he knows that one or both parties are not properly disposed to
receive the sacrament, for he is not the minister of Matrimony,
but only the witness authorized by the Church to assist at it
and to. bless the parties; to refuse to assist would commonly
do more harm than good. Even if one of the contracting
parties knows that the other is not in a fit state to receive a
sacrament of the living like Matrimony, still he will as a rule
be excused from sin in ministering the sacrament to him,
because he is not a consecrated minister of the sacrament, and
the advantages connected with marriage are a sufficient justifi-
cation for co-operating materially with the sin committed by
the other party by receiving the sacrament in a state of sin.
3. If one who is unworthy were to demand the administra-
tion of a sacrament out of contempt for the Faith or to show
his hatred for religion, the minister would be bound to refuse
it even at the risk of his life. He must protect the sacraments
which have been committed to his care from so great an in-
dignity which indeed would redound on God himself even
at the risk of life. Whether a minister at the risk of his life
would be bound to refuse a sacrament to one who was unworthy
and who demanded its administration with threats of death
in case of refusal, not indeed out of contempt or hatred of the
Faith, but for some other reason, is a disputed point among
theologians. It is at any rate a probable opinion that the
minister would not be bound to expose his life to danger, but
that he might administer the sacrament to save himself, as
we saw above that he might administer it to a secret sinner to
avoid scandal.
4. Innocent XI condemned the proposition that instant and
grave fear is a just cause for simulating the administration of
the sacraments. 2 From this it follows that not only formal
1 i West., d. 22; can. 1033. 2 Prop. 29.
70 THE SACRAMENTS IN GENERAL
simulation with the intention of deceiving others is wrong, as
being a lie in action, but even material simulation of administer-
ing a sacrament, whereby the matter or the form of a sacrament
is used without the making of the sacrament, is not justified
by grave fear. The minister may not give an unconsecrated
host to a sinner as Communion, nor fictitiously absolve a penitent
even to avoid death. The reason is because by so doing he
would abuse a holy rite, instituted by Christ, and thus be guilty
of gross irreverence toward God. It is a less sin for a priest
to celebrate unworthily than to pretend to say Mass and not
consecrate. However, a priest who instead of absolving a
penitent who is not worthy of absolution dismisses him with
a blessing so as not to betray him to people who are looking on,
does not simulate the administration of the sacrament in the
technical sense, and he does nothing reprehensible. He does
not make an irreverent use of the sacramental sign or of part
of it without completing the sacrament, in which the essence
of the simulation of the administration of a sacrament consists
in so far as it is wrong and has been condemned by the Church.
According to Canon 731, it is forbidden to administer the
sacraments of the Church to heretics and schismatics, even
though they be in good faith and ask for them, unless they
have first been reconciled with the Church after abjuring their
errors.
CHAPTER IV
THE RECIPIENT OF THE SACRAMENTS
i . THE sacraments were instituted to sanctify the souls of men
and thus to prepare them for heaven. Only living men, then,
can validly receive the sacraments; dead men or other beings
cannot receive them validly. Death takes place when the soul
is separated from the body, but we do not know the precise
moment when that separation takes place. Except putrefaction,
there are no absolutely certain signs of death, and it is quite
probable that the soul remains united to the body for some time
after all apparent signs of life have disappeared. Under these
circumstances recent medical men and divines hold that it is
lawful to administer the last sacraments to one who has to all
appearances been dead for an hour or two. This is especially
the case when death is the result of some sudden accident.
Men only, not women, are capable of receiving the sacrament
of Orders, and only those who have committed actual sins
after Baptism can validly receive the sacrament of Penance.
As the sacraments were instituted for the Church of Christ,
of which men become members by Baptism, this sacrament is
a necessary condition for the valid reception of the others.
2. No special disposition or intention is required on the
part of infants, who have not come to the use of reason, and of
imbeciles for the validity of the sacraments which they are
capable of receiving. As they have not the use of reason they
are incapable of disposing themselves for the reception of the
sacraments, and yet the Church has been accustomed to give
them the sacraments. The practice of the Church in such
matters has the very greatest authority, as the Angelic Doctor
says : " The custom of the Church has the greatest authority,
and it should always be followed in all things, because even
the teaching of Catholic Doctors receives its authority from
the Church. So that we must rather stand by the authority
of the Church than by the authority of Augustine or Jerome,
or of any Doctor soever." 1 With reference to infant Baptism
the Council of Trent passed the following decree: " If anyone
saith that little children, for that they have not actual faith,
1 Summa, 2-3, q. 10, a. is.
72 THE SACRAMENTS IN GENERAL
are not, after having received Baptism, to be reckoned amongst
the faithful; and that for this cause they are to be rebaptized
when they have attained to years of discretion; or that it is
better that the Baptism of such be omitted than that while not
believing by their own act they should be baptized in the faith
alone of the Church; let him be anathema." 1
3. On the other hand, God does not sanctify adults who have
the use of reason without some co-operation 'on their side;
justification, says the Council of Trent, 2 is the sanctification
and renewal of the interior man by the voluntary reception of
grace and the gifts of the Holy Spirit. Some wish, desire, or
intention to receive a sacrament is, then, necessary on the part
of adults for its validity. A positive refusal to receive a sacra-
ment, or a neutral state of mind neither willing nor refusing it,
would make the reception of a sacrament null and void. The
kind of intention which is necessary and sufficient for the
validity of a sacrament varies according to its nature. In
Penance and Matrimony a virtual intention is required in the
subject, as it is required in the minister. For in Penance the
acts of the penitent enter into the substance of the sacrament,
and so they must be directed by him to its confection. Matri-
mony is constituted by the mutual consent of the parties, and
for this at least a virtual intention is necessary. An habitual
intention is required in order to be baptized validly; in other
words, the person baptized must have at some time intended
to receive the sacrament and not revoked his intention after-
ward. It is a disputed point among divines whether an habitual
and express intention is necessary or whether an implicit in-
tention contained in a desire to do all that God has ordained,
or in an act of perfect charity or contrition, is sufficient. The
latter opinion is probable, and it may be used in case of neces-
sity when one is in danger of death, and then only. For the
sacraments, which confer benefits without imposing any great
burden, a general or implicit intention, such as is contained
in a desire to die like a Catholic with all the rites of the Church,
is sufficient for their validity. For Orders at least an habitual
intention is required.
Those, therefore, who are asleep, or are unconscious, can
receive the sacraments validly, for they may have all the dis-
positions which are necessary. The only difficulty is about
Penance, but, as we shall see, it is at least a probable opinion
that absolution is valid when given to one who is unconscious,
but otherwise disposed for the sacrament. However, it is
1 Sess. vii, c. 13, de Bapt. 2 Sess. vi, c. 7.
THE RECIPIENT OF THE SACRAMENTS 73
not lawful to administer the sacraments to those who are asleep,
unconscious, or out of their mind, except when in danger of
death. For the subject should be in a fit state to dispose him-
self for the reception of the sacraments so that he may receive
them with due reverence and fruit.
4. Except in Penance, neither faith nor good dispositions
are required for the validity of the sacraments, as is clear from
the practice of the Church, which is not accustomed to repeat
sacraments received in heresy or in bad dispositions. How-
ever, the state of grace is necessary for the lawful reception of
the sacraments of the living, as we have seen ; and for those of
the dead, faith, hope, and sorrow for sin are necessary, as the
Council of Trent teaches that they are for the justification of
the sinner. 1 Furthermore, for the lawful reception of the
sacraments the subject must be free from all censures which
deprive him of the right to receive them.
It follows from this that heretics and schismatics even when
baptized may not lawfully receive the sacraments at the hands
of Catholic ministers, as a general rule. 2 The sacraments are
intended for those who are visibly members of the Catholic
Church, and they alone have the right to receive them. If
anyone else wishes to receive them, let him enter the visible
Church of God. However, it is a disputed point whether the
sacraments may be lawfully administered to a schismatic or
heretic who is in good faith, and who is in danger of death.
Although St Alphonsus and others deny that it is lawful to
absolve such a person, yet the opposite opinion has its sup-
porters, and it is in keeping with several decrees of the Roman
congregations as, for example, that of the Holy Office,
July 20, i898. 3
The faithful are not prohibited from asking for the sacra-
ments from ministers who they know lead bad lives, if they
have good reason for so doing. Sin, indeed, is committed by
the minister if he administers a sacrament while in sin, but
if he does so his malice must be imputed to himself, not to
those who for good reason exercise their right to receive the
sacraments. Moreover, the malice of the minister cannot affect
the sacraments.
Although in extreme necessity a Catholic may receive the
sacraments from schismatical ministers, yet scandal to be avoided
rarely permits of its being done, as Benedict XIV teaches. 4
1 Sess. vi, c. 6. 2 Can. 731.
3 Analecta Ecclesiastica, 1898, p. 387.
4 De Syn. vi, c. 5, n. 2.
74 THE SACRAMENTS IN GENERAL
The faithful may confess to any Catholic priest of any rite
who has faculties for confession (Can. 905); and the faithful
may receive Holy Communion consecrated according to any
rite. But they are to be counselled to receive their Easter
Communion according to their own rite. Holy Viaticum
should also be received according to the rite of each one, except
in case of necessity when it may be received according to any
rite (Can. 866).
BOOK III
BAPTISM
CHAPTER I
THE NATURE OF BAPTISM
i. THE first of the sacraments, the door by which men enter
into the Church of God, by which they are made her children
and the sons of God, is Baptism. The Catechism of the
Council of Trent defines Baptism as tl^e sacrament of regenera-
tion by water in the word. This is but expressing in other
words what our Lord said to Nicodemus, " Unless a man be
born again of water and the Holy Ghost he cannot enter into
the kingdom of God." 1 The new birth which takes place in
Baptism is the new life of grace which is given to the soul by
the sacrament, and by this vivifying grace the soul which was
dead to God lives to him with a supernatural life.
Baptism, then, is a total washing of the soul from the stains
of sin, both original and actual, if any have been committed,
and a complete cancelling of all the debt of punishment which
may be due to sin. This is brought about by the infusion of
sanctifying grace into the soul, together with the habits of the
theological virtues of faith, hope, and charity. Moreover, by
Baptism a character is imprinted on the soul by which it is
known to God and his angels as that of a baptized Christian;
and the person baptized becomes a member of the Church, a
child of God, and heir to the kingdom of heaven.
2. By the positive will of Jesus Christ Baptism is necessary
for salvation, as may be gathered from the words quoted above.
This truth was defined by the Council of Trent, 2 " If anyone
saith that Baptism is optional, that is, not necessary unto
salvation let him be anathema." Without Baptism, then, it
is impossible to be saved, not merely because Christ com-
manded all to receive this sacrament, but because it infuses
sanctifying grace into the soul, that nuptial garment without
which no one can be admitted to the beatific vision. If, how-
ever, for one cause or another it is not possible to receive the
Baptism of water, its place may be supplied by an act of perfect
1 John iii 5. 2 Sess. vii, c. 5, de Bapt.
75
76 BAPTISM
contrition or of the pure love of God, and by martyrdom. On
this account Baptism is said by theologians to be threefold:
the Baptism of water, the Baptism of desire, and the Baptism
of blood.
Perfect conversion to God by contrition for sin or by charity
certainly infuses sanctifying grace into the soul and forgives
sin, as Holy Scripture frequently declares, and as the Council
of Trent teaches. 1 In this, therefore, its effect is similar to
the primary effect of Baptism, and it is rightly called the Baptism
of desire. Still, after the promulgation of the New Law the
Baptism of desire only produces its effect because explicitly
or implicitly it contains a desire and a purpose to receive the
Baptism of water, should occasion offer. Although the Baptism
of desire reconciles the sinner to God, yet it does not imprint
any character on the soul, nor does it necessarily remit all the
temporal punishment due to sin. The extent to which it does
this will depend on the intensity of the act.
Martyrdom, also, or death patiently endured for the sake
of Christ or for some Christian virtue, has the same effect as
the Baptism of desire. " Greater love than this," said our
blessed Lord, " no man hath, that a man lay down his life
for his friends." 2 Still martyrdom does not produce its effect
simply as an act of love, but in a manner ex opere operate, by
a special privilege, as being an imitation of the passion and
death of Christ. Thus the Church honours as saints in heaven
the Holy Innocents and other children who have been put to
death for the sake of Christ. In the case of adults who have
committed sin there must at least be attrition for sin in order
that martyrdom may produce its effect as a kind of Baptism.
1 Sess. xiv, c. 4. 2 John xv 13.
CHAPTER II
THE MATTER AND FORM OF BAPTISM
i . THE remote and valid matter of Baptism is natural water
in a suitable state for washing one's self. It is quite immaterial
whether the water be spring water, rain water, sea water, or
water from a river or pond ; but frozen water is doubtful matter
until it is melted, because it is not suitable for washing one's
self; while mud is invalid matter (Can. 737).
For solemn Baptism the Church prescribes the use of water
specially consecrated for the purpose, land the same may be
used for private Baptism, as also may holy water and common
water. For the private Baptism of adults who have been
converted from heresy and require to be baptized conditionally,
the First Synod of Westminster prescribes the use of holy
water.
The proximate matter of the sacrament is its use or applica-
tion in the act of baptizing. This may validly be done either
by infusion, or immersion, or sprinkling, provided that the
water touches the head of the person to be baptized and flows
so as to express the action of washing. In the Western Church,
however, a triple pouring of water on the head of the person
to be baptized, or a triple immersion, if such be the custom,
is prescribed by the rubrics of the Ritual. Care should be
taken that the water touch the skin, as the Baptism would be
of doubtful validity if it merely touched the hair. Merely to
lay the wet hand or finger on the skin would not be valid
Baptism, and even if the wet finger were moved over the skin
the validity would still be doubtful (Can. 758).
2. The form of Baptism is: " I baptize thee in the name of
the Father, and of the Son, and of the Holy Ghost." Any
change in this form which altered the sense would also in-
validate the Baptism, as if one should say, " I baptize thee in
the name of Christ," or " of the Blessed Trinity." The form
should be pronounced by the minister while he pours the
water, and it is clear that if one pronounced the words while
another poured the water, or if one baptized one's self, the
Baptism would be invalid.
77
CHAPTER III
THE MINISTER OF BAPTISM
i. THE ordinary minister of solemn Baptism is a priest, but
as it is a parochial sacrament, its lawful administration belongs
exclusively to the parish priest or to the priest who has the
cure of souls in the district in which the parents of the child
have their domicile or quasi-domicile. Such priest may, of
course, delegate authority to any other priest to baptize in his
name ; if there is reasonable cause, as in case of illness or con-
stant occupation in hearing confessions, he may commission
a deacon to give solemn Baptism. The children of strangers
may be baptized by the parish priest of the place, unless they
can easily and without delay be baptized by their own parish
priest (Can. 738, sec. 2).
In case of necessity, when there is danger of someone dying
without Baptism, anyone who has the use of reason may
baptize without the ceremonies. In such cases of necessity
the Ritual prescribes that a priest should be preferred to a
deacon, a deacon to a subdeacon, a cleric to a lay person, a
man to a woman, unless the latter be preferred for the sake
of decency or because she is better acquainted with the method
of valid Baptism. Those who have the cure of souls should
take care that the faithful, especially midwives, are instructed
in the right method of administering Baptism. The Ritual
also prescribes that a father or mother should not baptize their
own child except when it is in danger of death and no one else
can do so (Can. 742).
2. The ceremonies prescribed for solemn Baptism are of
grave obligation, so that it would be a mortal sin to omit with-
out necessity a notable part of them, as, for example, the
anointings or the use of consecrated water. The child is
anointed with the oil of catechumens before the actual baptizing,
and afterward with the chrism. The holy oils should be kept
carefully separated, and they should be renewed every year
when the oils are consecrated by the Bishop on Maundy
Thursday. The baptismal font, too, should be blessed on
Holy Saturday with the oils consecrated on the previous
Thursday. If they have not arrived in time the font should
78
THE MINISTER OF BAPTISM 79
be blessed without them, and they should be added afterward,
unless, in the meantime, someone has to be baptized, and then
the old oils may be used in blessing the font. If the oils
threaten to be exhausted, fresh, unblessed olive oil may be
added, always in smaller quantity. The same rule may be
followed with regard to the consecrated water in the font.
The Ritual admonishes the parish priest to take care that as
far as possible names of saints should be given in Baptism, so
that, by their example, the baptized person may be moved to
live holily, and that he may hope to enjoy their patronage.
In solemn Baptism the Latin language should be used,
but certain portions may also be rendered in the ver-
nacular, according to the Ritual approved for use in the
country.
3. According to the Code of Canon Law, the proper place
for solemn Baptism is the baptistery in a church or public
oratory. Every parish church should have a baptismal font.
If, on account of distance or for other reasons, a person to be
baptized cannot be brought to the parish church, the parish
priest may and ought to administer solemn Baptism in the
nearest church or public oratory. Solemn Baptism should not
be administered in private houses unless those to be baptized
are the children or grandchildren of those who hold the chief
authority in the country, or have the right to succeed to the
throne, and they make the request, or if the local Ordinary
for good reason in some extraordinary case thinks that it should
be allowed. In these cases Baptism should be given with
consecrated water, and in the chapel or in some suitable room
of the house (Can. 773-776).
Adults should be baptized according to the longer form in
the Ritual unless the local Ordinary for a grave reason allow
the form for the Baptism of infants to be used (Can. 755,
sec. 2).
Those who have attained the use of reason are their own
masters in the things of God, and are considered adults with
reference to Baptism (Can. 745, sec. 2, ii).
Adults who have been converted from heresy and require
conditional Baptism are to be baptized privately with holy
water and without the ceremonies, according to the First
Synod of Westminster (Can. 759, sec. 2).
In questions concerning Baptism, infants are those who have
not attained the use of reason, and those who never have
had the use of reason are reckoned as infants (Can. 745,
sec. 2).
8o BAPTISM
Canon 760 prescribes that when Baptism is reiterated con-
ditionally, the ceremonies are to be employed if they were not
used in the first Baptism ; if they were used in the first Baptism
they may be used or omitted in the second at the option of the
minister. This does not apply to conditional Baptism ad-
ministered to adult converts.
CHAPTER IV
THE SPONSORS
i. SPONSORS, according to ecclesiastical law, are used in
solemn Baptism to answer for the child baptized, to hold him
during Baptism, or to receive him immediately after Baptism
from the hands of the minister, and to act as his instructors
in the Faith which he received and professed in Baptism.
With regard to those who have Catholic parents, the sponsors
may ordinarily presume that the Catholic education of the
child will be sufficiently provided for by them; but otherwise
the sponsors will be bound, as far as possible, to provide for it.
Sponsors should be employed in private Baptism if at least
one can easily be had; if this was not done, they should be
employed afterwards when the ceremonies are supplied in the
Church (Can. 762, sec. 2).
2. The Council of Trent ordained, " that in accordance
with the appointments of the sacred canons, one person only,
whether male or female, or at most one male and one female,
shall receive in Baptism the individual baptized; between
whom and the baptized, and the father and mother thereof, as
also between the person baptizing and the baptized, and the
father and mother of the baptized, and these only, shall spiritual
relationship be contracted. The parish priest, before he
proceeds to confer Baptism, shall carefully inquire of those
whom it may concern what person or persons they have chosen
to receive from the sacred font the individual baptized ; and he
shall allow him or them only to receive the baptized; he shall
register their names in the book, and teach them what relation-
ship they have contracted, that they may have no excuse on
the score of ignorance. And if any others besides those
designated should touch the baptized, they shall not in any
way contract a spiritual relationship, any constitutions that
tend to the contrary notwithstanding." 1
Spiritual relationship between the sponsors and the parents
of the baptized person and between the minister of Baptism
and the parents was abolished by Canon 768.
1 Sess. xxiv, c. 2, de Ref.
H. 81 6
82 BAPTISM
In order to be sponsor validly a person must be :
(1) Baptized, have the use of reason, and have the intention
of being sponsor.
(2) He must not belong to any heretical or schismatical
body, nor be excommunicated by a condemnatory or declaratory
sentence, nor infamous with the infamy of law, nor excluded
from acts of law, nor a deposed or degraded cleric.
(3) He must not be the father, mother, or spouse of the
person baptized.
(4) He must be designated by the person to be baptized,
or by his parents or guardians, or failing these by the minister
of Baptism.
(5) He must physically hold or touch the baptized person
in the act of Baptism, by himself or by his proctor, or immedi-
ately raise or receive him from the sacred font or from the
hands of the person baptizing (Can. 765).
3. To be admitted as sponsor lawfully a person
(1) Must have reached the fourteenth year of his age, unless
the minister judge otherwise for a good reason.
(2) He must not be excommunicated for a notorious crime,
or excluded from acts of law, or infamous with the infamy of
law, but without sentence having been passed, or under inter-
dict, or otherwise publicly criminal, or infamous by infamy
of fact.
(3) He must know the rudiments of the Faith.
(4) He must not be a novice or professed in any religious
institute, unless there is necessity and the express leave be
had of at least the local superior.
(5) He must not be in sacred orders unless he have the
express leave of his own Ordinary (Can. 766).
Others are sometimes prohibited by provincial law, as the'
following in England: those who have not been confirmed or
who have not made their Easter duties, and ecclesiastics.
One may be sponsor by proxy, and then the principal, not
the proxy, contracts spiritual relationship with the person
baptized.
Sponsors are not necessary when Baptism is reiterated
conditionally, unless the same person can be had in the second
Baptism as acted as sponsor in the first (Can. 763).
CHAPTER V
WHO MAY BE BAPTIZED ?
i. ANY living human being who has not yet been baptized
is capable of receiving this sacrament. If he has the use of
reason, an habitual intention at least to receive Baptism is
necessary for its validity, though, as we saw above, it is probably
sufficient if it be implicitly contained in a wish to do all that
God requires, or any similar act of the will. In children who
have not attained the use of reason and in imbeciles no inten-
tion is required for the reception of Baptism ; the intention of
the Church supplies for it.
For the lawful reception of this sacrament by adults who
have the use of reason all those dispositions are necessary which,
as the Council of Trent teaches, 1 are required for the justifica-
tion of the sinner. They must, then, have faith, and believe
all those truths which God has revealed and which the Church
proposes to our belief. In particular they must know and
believe explicitly the being of God, that he rewards and punishes
men according to their deserts, the Blessed Trinity, the In-
carnation, the Apostles' Creed, the Decalogue, and the Lord's
Prayer. In other words, they should be properly instructed
in the catechism. They should also approach the sacrament
with hope, and at least with that kind of sorrow for sin which
is called attrition.
2. Cathojic parents are bound to see that their children
are baptized, and that as soon as can conveniently be done. .
According to approved theologians, it would be a serious sin
if the Baptism of a child were put off for a month without
good reason. As Catholic parents are subjects of the Church,
and they are bound to obey her laws, no injustice would be
done if a child of such parents were baptized without or against
their wish. Non-baptized parents are not subject to the
Church, and, as St Thomas teaches, it would be against natural
justice if an infant of theirs who is in no danger of death were to
be baptized without their consent. When a non-baptized child is
in danger of death the necessity of providing for its eternal salva-
tion overrides all other private considerations (Can. 750, sec. i).
1 Sess. vi, c. 6.
83
84 BAPTISM
When a child comes to the use of reason he becomes his
own master in the things of God, and absolutely he may ask
for and receive Baptism without the consent of his parents.
Still in practice great caution is needed in such a matter. Of
course, if the parents agree to allow the child to be brought
up a Catholic, and it has Catholic sponsors, the difficulty will
cease. But if it is baptized against their will, and remains
subject to their control in other respects, the faith of the child
will be in constant danger, especially as it can hardly be very
firmly established before mature age. Ordinarily, then,
children should not be baptized without their parents' consent
until they reach an age when their convictions are firmly rooted
and there is every prospect of their perseverance.
3. It would be a grave sin knowingly to baptize again one
who has already been validly baptized. So that when a child
has been baptized by a nurse or mi.dwife by reason of apparent
danger of death, inquiry should indeed be made as to the
manner of the Baptism, but if the matter and form were rightly
applied the Baptism must not be repeated ; only the ceremonies
must be supplied in the Church. In case of doubt concerning
the validity of the former Baptism, it should be repeated
conditionally.
When heretics are converted to the Faith, inquiry should
be made in every case concerning their Baptism. If it is found
either that they were never baptized, or that the Baptism was
invalid, they must be baptized again absolutely. If, after
inquiry, a prudent doubt remains as to whether they were
ever baptized, or as to whether their Baptism was valid, they
should be baptized again conditionally, and in secret so as
to avoid scandal.
If it is found that their Baptism was valid, they should only
abjure their errors, and make a profession of the Catholic
faith.
4. An aborted foetus, if it is still living, should be baptized,
rupturing the membranes if necessary, and pouring water
over it while at the same time pronouncing the form of Baptism
(Can. 746).
The Ritual admonishes ministers of the sacrament to be
cautious about baptizing monsters. If a monster has not a
human shape, but is a mere mass of fleshy growth, it should
not be baptized at all. If there are two heads and two bodies,
there are two persons, and both should be baptized, separately
if there is time, otherwise under a common form. If it is
doubtful whether there are two persons or only one, Baptism
WHO MAY BE BAPTIZED ? 85
should be given absolutely to one, and again conditionally to
the other, under the form, " If thou art not baptized, I baptize
thee," and so forth.
The Ritual also prescribes that if a woman dies in pregnancy
the foetus should be extracted, and if still living should be
baptized. This, of course, supposes that there is a skilled
person present who judges that the foetus is still alive, and who
is capable of performing the necessary operation.
The question also occurs whether a mother, who is still
living but who cannot bring forth her child alive, is bound to
undergo a serious operation like Caesarian section in order to
insure the eternal welfare of her child by Baptism. Of course
she may not undergo the operation if it would be the immediate
cause of her own death. The mother must not be killed even
for the salvation of the child. Even if her health and condition
are such that in all probability she could stand the operation,
yet it is probable that she is under no obligation to submit to it.
The child can with sufficient certainty be baptized in the womb,
and even if the operation were performed, greater certainty
that the child would still be alive and capable of Baptism can
seldom be obtained. In such circumstances no strict obliga-
tion to undergo a serious operation can be imposed on the
mother.
BOOK IV
CONFIRMATION
CHAPTER I
THE MATTER OF CONFIRMATION
i. CONFIRMATION is a sacrament by which a baptized person
receives grace boldly to profess and defend the Faith which
he received in Baptism. It is, then, complementary to Baptism ;
as Baptism makes a man a follower qf Christ, Confirmation
makes him a soldier of Christ. It is a sacrament of the living,
and gives an increase of sanctifying grace to the soul together
with the right to receive those actual graces which will be
needed to resist temptation and to lead a good Christian life.
It is also one of the three sacraments that imprint a character
on the soul.
2. Divines are not agreed as to what constitutes the matter
of Confirmation. Some hold that the general imposition of
hands by the bishop who confirms at the beginning of the rite
is the essential matter; while the subsequent anointing of each
person to be confirmed belongs to the matter accidentally.
Others maintain that this general imposition of hands and the
anointing form the essential matter of the sacrament. The
common opinion is that the anointing with chrism, together
with the simultaneous imposition of the hand of the Bishop
on the forehead of the confirmed person while he makes on it
the sign of the cross with the chrism, is the adequate and essential
matter of the sacrament.
Chrism, which is thus the remote matter of Confirmation, is
made of olive oil and balsam. It is a disputed point whether
the mixture of balsam is only of precept or whether it is neces-
sary for the validity of the sacrament. However, balsam of
any country will suffice. The chrism thus made must be
blessed by a bishop, and this, according to the common opinion,
is necessary for the validity of the sacrament.
Three kinds of holy oils are blessed by the bishop on Maundy
Thursday the oil of the sick, with which Extreme Unction
is given ; the oil of catechumens, with which those about to be
baptized are anointed in administering Baptism; and chrism.
87
88 CONFIRMATION
It is probable that any one of these holy oils will serve for the
others, so that Confirmation given with oil of the sick would
be probably valid. Still it is not lawful to follow this opinion
except in case of necessity.
A fresh supply of holy oils should be procured every year
after they have been blessed by the bishop on Maundy Thurs-
day, and the old ones burned. However, if the new oils cannot
be obtained at the proper time, especially in the missions where
Vicars Apostolic without episcopal consecration have faculties
to give Confirmation, the old oils may be used as long as the
difficulty of obtaining new ones lasts.
3. The form of Confirmation is, "I sign thee with the sign
of the cross, and I confirm thee with the chrism of salvation,
in the name of the Father, and of the Son, and of the Holy
Ghost." There is some doubt as to whether the invocation
of the Blessed Trinity is an essential part of the form, chiefly
because it does not appear along with the other part in the form
used in the Eastern Church. The question belongs to dogmatic
theology, but briefly we may say that if it is an essential part
of the form, the invocation is elsewhere in the Oriental rite.
CHAPTER II
THE MINISTER OF CONFIRMATION
THE ordinary minister of Confirmation is a bishop, but the
Pope may, and in the missions frequently does, delegate
faculties to a priest to administer the sacrament with chrism
blessed by a bishop. In other words, a bishop is the ordinary
official in the hierarchy who has the power to admit Christians
into the army of our Lord by confirming them, but the General
of the army in special cases empowers a simple priest to do this.
It is a disputed point whether the Pope could empower a simple
priest to bless the chrism.
By law Cardinals, Abbots and Prelates of no diocese, Prefects
and Vicars Apostolic have the faculty of giving Confirmation
within their territory during their tenure of office (Can. 782,
sec. 3).^
A bishop may not give Confirmation outside his diocese
without the leave of the bishop of the place; but within his
diocese he may confirm all who come to him, whether they
are his subjects or not, unless their own bishop has expressly
forbidden it (Can. 783). A bishop is bound to give his subjects
who have not been confirmed the opportunity of receiving the
sacrament.
He must also be prepared to administer Confirmation when
a reasonable request is made for it by any of the faithful subject
to his charge.
In case the bishop himself is prevented from administering
Confirmation he should provide that his subjects have the
opportunity of receiving it at least every five years (Can. 785).
89
CHAPTER III
THE SUBJECT OF CONFIRMATION
i. ANYONE is capable of being confirmed who has not yet
received this sacrament and who has been baptized. For the
validity of the sacrament the use of reason is not necessary,
but adults who have the use of reason must have at least an
habitual intention of receiving the sacrament. No one may
lawfully receive this sacrament who is not in the state of grace.
Moreover, according to modern discipline, Confirmation is
only given to those who have been well instructed in Christian
doctrine and know well what is required of a good Catholic.
Before Confirmation is administered, the opportunity should
be taken to give special instructions in Catholic faith and
practice to those who are about to receive the sacrament
(Can. 1330).
2. The First Synod of Westminster 1 prescribes that priests
who have the cure of souls should do all in their power to have
children confirmed, especially if they be of the humbler sort,
so that they may be able to resist the temptations to which their
faith will afterward be exposed. Canon 787 says that no one
may neglect to receive Confirmation on occasion being offered,
and that parish priests are to take care that the faithful receive
it opportunely.
3. For Confirmation there should be one sponsor who
presents one or two to be confirmed. He himself should be
confirmed, should have the use of reason, and should have the
intention of fulfilling his office. He should not be a heretic
or schismatic, or criminal, nor the father, mother or spouse
of the person to be confirmed. He should be lawfully desig-
nated, and should physically touch the person confirmed by
personal contact or by proxy.
That he may be lawfully admitted he should not be the
same who acted as sponsor in Baptism, and he should be of the
same sex as the person confirmed (Can. 794-796).
Spiritual relationship arises between him and the person
confirmed (Can. 797). But it is not a diriment impediment
of marriage (Can. 1079).
1 d. 17.
90
BOOK V
THE HOLY EUCHARIST
PART I
THE SACRAMENT OF THE EUCHARIST
CHAPTER I
THE NATURE AND EFFECTS OF THE EUCHARIST
i. THE Council of Trent teaches " that in the august sacra-
ment of the holy Eucharist after the consecration of the bread
and wine our Lord Jesus Christ, true God and man, is truly,
really, and substantially contained under the species of those
sensible things. For neither are these things mutually re-
pugnant that our Saviour himself always sitteth at the right
hand of the Father in heaven, according to the natural mode
of existing, and that nevertheless he be in many other places
sacramentally present to us, in his own substance, by a manner
of existence which, though we can scarcely express it in words,
yet can we by the understanding, illuminated by faith, con-
ceive, and we ought most firmly to believe, to be possible unto
God; for thus all our forefathers, as many as were in the true
Church of Christ, who have treated of this most holy sacra-
ment, have most openly professed that our Redeemer instituted
this so admirable a sacrament at the Last Supper, when, after
the blessing of the bread and wine, he testified in express and
clear words that he gave them his own very body and his own
blood. And this faith has ever been in the Church of God,
that immediately after the consecration the veritable body of
our Lord and his veritable blood together with his soul and
divinity are under the species of bread and wine." 1 It does
not belong to the province of moral theology to prove or to
defend this dogma of our Faith. We accept the teaching of the
Church that the holy Eucharist is a sacrament in which under
the species of bread and wine we receive Jesus Christ, the
spiritual food of our souls. It is not merely a sacrament while
it is received by the communicant, or while it is consecrated
1 Sess. xiii, c. 1,3.
92 THE HOLY EUCHARIST
by the priest in Mass. It is a permanent sacrament, under
which our Lord remains present as long as the sacred species
remain unchanged. It gives sacramental grace to the soul
while it is being swallowed as food, and the divine presence
remains in the communicant until the species of bread and wine
are corrupted.
Although in the consecration there is a twofold matter and
form, yet these constitute only one sacrament, for the species
of bread and wine together signify a complete spiritual repast,
just as food and drink go to make one meal for the body.
2. The effects which the holy Eucharist produces in the soul
are set forth by the Council of Trent: " Our Saviour wished
that this sacrament should be received as the spiritual food of
souls, whereby may be fed and strengthened those who live
with his life who said, ' He that eateth me, the same also shall
live by me ' ; and as an antidote, whereby we may be freed
from daily faults, and be preserved from mortal sins. He
would, furthermore, have it be a pledge of our glory to come,
and everlasting happiness, and thus be a symbol of that one
body whereof he is the head, and to which he would fain have
us as members be united by the closest bond of faith, hope,
and charity, that we might all speak the same things, and there
might be no schisms amongst us." 1 Besides being an antidote
by which we are preserved from mortal sin, it is a very probable
opinion that if the Eucharist is received by one in a state of
mortal sin, of which he is not conscious and to which he is riot
attached, that sin will be forgiven. For the sacraments give
grace to all who put no obstacle in their way, and such a com-
municant cannot be said to put an obstacle to the grace of the
sacrament. But the entrance of grace expels all mortal sin
from the soul. This is the teaching of St Thomas 2 and many
other theologians.
1 Sess. xiii, c. 2. 2 Summa, 3, q. 79, a. 3.
CHAPTER II
THE MATTER AND FORM OF THE EUCHARIST
i. THE remote matter of the Eucharist is twofold wheaten
bread and wine of the grape. Barley bread, or bread made
from oats or rye, or any other kind of grain or vegetables or
fruits, is invalid matter. The wheaten bread must be baked
with water, not boiled, or mere dough. If baked with oil or
milk or butter, it will be doubtful matter. The wine must
be genuine juice of the grape, not made artificially; wine
made from any other kind of fruit will be invalid matter. If
the wine has become vinegar, it is changed substantially, and
will not serve for Mass ; if it has only begun to get sour, it will
be consecrated validly, but the priest who uses it sins grievously.
There is some controversy as to whether frozen wine could be
consecrated. The rubrics prescribe that if the precious blood
is frozen after the consecration it should be liquefied again
by putting warm cloths about the chalice and then consumed.
It is clear, then, that freezing does not change the species sub-
stantially so as to render our Lord no longer present under
them; it follows from this that freezing does not prevent the
wine being consecrated.
Unfermented bread is used for the Eucharist in the Western
Church, and fermented in the Oriental rites. Members of
the two Churches are bound under grave precept to follow their
respective rites, even if a Western priest were for a time in
the East (Can. 816).
Because water came forth from the opened side of our
Redeemer with his blood, the Church has commanded that
in saying Mass a little water, not more than a fifth or at most
a third part of the wine, should be mixed with the wine in the
chalice. If the wine of a country is of a poor quality and
difficult to keep, a little alcohol may be added to it to preserve
it, but not so as to make more than 12 or 18 per cent, of the
whole. No other matter may be added either to the flour or
to the wine which are used for the Blessed Eucharist, and the
greatest care should be taken both by bishops and priests to
insure the use of only genuine matter in the confection of this
sacrament.
93
94 THE HOLY EUCHARIST
2. The form of consecration for the bread is, " For this is
my body," and for the chalice, " For this is the chalice of
my blood of the New Testament, the mystery of faith, which
shall be shed for you and for many unto the remission of sins."
Any change in these forms which would make the sense different
would also make them invalid.
There is a controversy among theologians as to whether the
whole of the above form for the consecration of the chalice
is essential, or whether it would be sufficient for the validity
of the consecration to say only, " This is the chalice of my
blood." It is very probable that these words alone constitute
the essential form for the consecration of the chalice, though, of
course, the fuller form must always be used. For these words
alone signify the real presence of our Lord ; the rest are merely
a further declaration or explanation of them. Besides, " This
is my body " constitutes the valid form for the consecration
of the bread, and so, by analogy, " This is the chalice of my
blood " should constitute the valid form for the consecration
of the wine.
3. For the valid consecration of the Eucharist the priest
must not only use the proper matter according to the institution
of Christ, but that matter must be physically present, not far
distant from him, when he pronounces the form of consecration.
This essential condition is required by the sense of the form,
" This is my body," which indicates that the matter to be
consecrated is near the priest, so that it can be indicated by the
demonstrative pronoun. Hence a priest in one room could
not consecrate bread and wine in another, or behind his back,
or, as it would seem, locked up in the tabernacle. Moreover,
the matter must be determined by the intention of the priest ;
he would not consecrate a host which had been left on the altar
for him to consecrate, but about which he knew nothing, and
which he had no intention to consecrate. A difficulty sometimes
arises when a priest has been asked to consecrate the ciborium
which is placed on the altar by the sacristan, but which the priest
afterward forgets to take and place on the corporal for consecra-
tion. What is intended for consecration should be placed on the
corporal and on the altar-stone of sacrifice. Inasmuch as this
was not done, and it would be wrong to intend to consecrate
a ciborium which had not been placed on the corporal, it would
seem at first sight that such a ciborium is not consecrated.
It is, however, better to make a distinction. If the priest had
intended to consecrate the ciborium and during Mass had
noticed its presence, though he did not advert to its being off
MATTER AND FORM OF THE EUCHARIST 95
the corporal, it would certainly be consecrated. If, on the
contrary, after being notified in the sacristy about consecrating
the ciborium, he forgot all about it, and never adverted to its
presence on the altar, the consecration will be doubtful; and
hosts thus doubtfully consecrated should on no account be
given as Communion to the faithful, but should be consecrated
conditionally in another Mass, or if they are few in number
they might be consumed by the priest before taking the
ablutions.
Furthermore, for the lawful consecration of the matter, the
hosts must be whole, clean, and of the usual size and shape;
the chalice and ciborium must be uncovered, and the consecra-
tion must be in Mass as it is prescribed to be said and under
both kinds. If the ciborium or chalice are by mistake left
covered, the consecration will be valid, for all the conditions
required for validity are fulfilled. Hosts to be consecrated
should be on the corporal at the offertory when the victim is
set aside for the sacrifice, but if this has not been done, they
may be received up to the canon, or for grave reason even
up to the consecration, but the oblation should be mentally
supplied.
CHAPTER III
THE MINISTER OF THE EUCHARIST
i. ONLY a priest can say Mass and consecrate the Eucharist,
and a priest is also the ordinary minister who distributes Holy
Communion to others. If, however, the priest is occupied and
is unable to give Holy Communion himself, he may delegate
faculties to a deacon who is the extraordinary minister of the
Eucharist. In case of necessity, especially when there is
danger of dying without receiving the Viaticum, and there is
no priest or deacon to give it, a simple cleric, or even a lay
person, may administer Holy Communion to himself or to
another. It was not very unusual in the primitive Church for
laymen to do this, but nowadays the occasion would seldom arise.
2. Any priest within Mass, and if he celebrates privately,
also immediately before and immediately after Mass, can
administer Holy Communion. This may be done wherever he
says Mass, even in a private oratory, unless for some good reason
the local Ordinary forbids it in particular cases (Can. 846, 869).
It is the right and duty of the parish priest within his parish
to carry Holy Communion publicly to the sick, even though
they be not his parishioners. Other priests can only do this
in case of necessity, or with at least the presumed leave of the
parish priest or of the Ordinary (Can. 848).
To carry Viaticum to the sick, whether publicly or privately,
also belongs exclusively to the parish priest. Any priest can
carry Holy Communion to the sick privately (Can. 849).
3. All who have the cure of souls are bound to administer
the Eucharist to their flock, not only when these are under
an obligation to receive it, but whenever they reasonably ask
for it. This obligation is grave, but it does not bind with
proximate danger of death from catching disease or from some
other cause, nor is a single refusal of the sacrament necessarily
a grave sin, for the loss of it may easily be made up on another
occasion. Priests who have not the cure of souls may some-
times be bound to administer Holy Communion, not out of
justice, but out of charity.
4. For the lawful administration of Holy Communion the
minister must be free from all censures which deprive him of
96
THE MINISTER OF THE EUCHARIST 97
the right to administer it ; he must be in the state of grace, and
he must follow the rubrics laid down by the Church in the
Missal and Ritual.
According to Canon 867, Holy Communion may be ad-
ministered on any day, but on Good Friday only as Viaticum
to the sick.
On Holy Saturday Holy Communion may not be given to
the faithful except in High Mass, or immediately after it and
in continuation of it.
Holy Communion can only be administered at the times
when Mass may be said, unless there be some reasonable cause
for doing otherwise.
But Viaticum may be given at any time of the day or night.
The Blessed Sacrament should not be taken from the church
except when it is carried to the sick, , and then with all the
marks of honour prescribed by the rubrics of the Ritual. How-
ever, in English-speaking countries the Holy Eucharist cannot
be taken to the sick publicly, so it is carried in a small pyx
enclosed in a bag specially made for the purpose, and suspended
by a cord or chain from the priest's neck. The priest should
have on a stole underneath his coat.
5. If a consecrated host falls on the ground or on the Com-
munion cloth, the place should be marked and afterward
washed, and the water poured into the piscina. If the Precious
Blood is spilled, the priest should suck it up as far as possible,
and afterward the place should be well washed, scraped, and
the water and scrapings poured into the piscina. If a con-
secrated host fall on the beard or clothes of a communicant,
the place on which if fell need not be washed. If it falls on
the breast or dress of a woman, she should take it reverently
in her fingers and give it to the priest, who will then administer
it to her as Communion.
If, while he is still vested, a priest discovers what seem to
be particles consecrated in his Mass, the rubrics direct that
he should consume them, even though no longer fasting ; if he
has put off the sacred vestments, or if the particles do not
belong to his Mass, they should be reserved for another priest to
consume after his own Communion, or placed in the tabernacle.
If the Blessed Sacrament is vomited by a sick man, the
sacred species should be carefully separated and placed in a
vessel in the tabernacle until they corrupt, when they should
be thrown into the piscina. Corruption will more quickly
take place, and any disagreeable odour will be avoided, if a
little water be put into the vessel,
n. 7
CHAPTER IV
THE RESERVATION OF THE EUCHARIST
i. THE Ritual prescribes that the parish priest, or one who
has the cure of souls, should take care that some consecrated
particles, in sufficient number for the use of the sick and for
the Communion of the rest of the faithful, should be always
reserved in a clean pyx of solid and decent material, well
closed with its own lid, covered with a white veil, and as far
as possible in an ornamented tabernacle kept locked with a
key. This key should be in the keeping of the priest, not
in that of the sacristan or other person. As a rule the pyx
or ciborium is of silver, and gilded inside. There seems to
be no strict law prescribing that it should be consecrated
or even blessed, though there is a form for blessing it in
the Ritual.
The Blessed Sacrament, then, must be thus reserved for
the use of the faithful in all cathedrals, parish churches, and
chapels of ease attached to parochial churches. Religious
orders of men and women who take solemn vows have the
privilege of reserving the holy Eucharist in their churches.
It can only be reserved in other churches or oratories by special
indult from the bishop, or from the Holy See in the case of
strictly private oratories (Can. 1265).
2. The Ritual further prescribes that the tabernacle should
be decently covered with a veil, that nothing else besides the
Blessed Sacrament should be put in it, and that it should be
placed on the high altar, or on another if this would conduce
to greater reverence toward the holy Eucharist, so that it would
be no obstacle to sacred functions or ecclesiastical offices.
Several lamps, or at least one, should always be kept burning
before it night and day. The lamps should be fed with olive
oil, but if the church is very poor the bishop may allow vegetable
or mineral oil to be used. Gas or electric lamps should not
be tolerated. One lamp must be kept burning under pain of
grievous sin.
The veil of the tabernacle should be white or in keeping
with the colour of the day, but never black (Can. 1269-
1271).
98
THE RESERVATION OF THE EUCHARIST 99
3. The particles taken for consecration should be fresh,
not more than fifteen days or at most a month old, and
they should be renewed every eight, or at most fifteen,
days, though in this matter regard should be had to the
dampness or dryness of the place and season (cf. Can.
1273).
CHAPTER V
THE SUBJECT OF THE EUCHARIST
ARTICLE I
The Necessity of the Eucharist
i. THE holy Eucharist can be received only materially by
one who is not baptized and who consequently is incapable
of receiving the other sacraments; it is received spiritually by
one who ardently desires to receive it with the proper disposi-
tions; it is received sacramentally when it is really received
by one who has been baptized. The sacramental reception
of the Eucharist is not a necessary means of salvation, for it
is a sacrament of the living and supposes the grace of God in
the soul, and a soul in the state of grace has everything which
is necessary for salvation. Divines dispute whether the
Eucharist is a necessary means for preserving the life of grace
in the soul. It is, indeed, the ordinary food of the Christian
soul, as bread is the ordinary food of the body, but as there
is other spiritual food which may be taken, and notably prayer,
and this may supply for the want of the ordinary food, the
better opinion holds that the Eucharist is not strictly necessary
even for the preservation of the life of grace in the soul. How-
ever, it is certainly necessary by divine and ecclesiastical
precept. The divine precept is manifest from the words of
our Lord: " Unless you eat the flesh of the Son of man and
drink his blood you shall not have life in you." 1 Not that
these words imply that Communion under both kinds is of
divine law, for he who receives the sacrament under one species
receives the body and blood of Christ with his soul and divinity.
Moreover, as the Council of Trent explains, 2 he who made use
of those words also said, " He that eateth this bread shall live
for ever." 3 The Church, therefore, for just and weighty
reasons ha& forbidden Communion under both kinds, using the
power given to her by Christ with reference to the dispensation
of the sacraments, though she has no authority to change their
substance. 4
1 John vi 54. 2 Sess. xxi, c. i.
3 John vi 59. 4 Trent, sess. xxi, c. 2.
100
THE SUBJECT OF THE EUCHARIST 101
This divine precept must be fulfilled at least at the time of
death, when it is of the greatest importance, and also some-
times during life. How often it must be received to satisfy
the divine precept is uncertain, but the Church has determined
the divine law by ordering all the faithful who have come to
years of discretion to receive Holy Communion at least once
a year, at Easter. 1 Those, however, who desire to lead a good
Catholic life, are by no means content with yearly Communion ;
they receive it once a month or still more frequently.
2. According to the general rule, children become subject
to and bound to obey the positive laws of the Church when they
reach the age of seven. However, before the new Code of
Canon Law came into force it was usual to defer a child's first
Communion until he had reached the age of nine or twelve.
The Code (Can. 859) interprets the phrasie " years of discretion,"
used by the Lateran Council, to mean the same as to attain
the use of reason, and so, now, children are bound to make
their Easter Communion when they are seven years of age,
unless, indeed, for some good reason it is judged advisable
to abstain for a time. This obligation, as far as it affects those
under the age of puberty, falls chiefly on those who have care
of them that is, on parents, guardians, confessors, teachers,
and parish priests (Can. 860).
Canon 863 prescribes that the faithful are to be exhorted to
receive Holy Communion frequently, and even daily, according
to the rules laid down in the decrees of the Holy See, and that
those who attend Mass should dispose themselves to receive
Holy Communion not only spiritually, but sacramentally.
Daily Communion may not be refused to anyone who is in
the state of grace and who has a right intention. There should
be suitable preparation and thanksgiving, and that daily Com-
munion may be practised with more prudence and with greater
fruit, the advice of the confessor should be asked.
It is a disputed point whether one who is now in danger of
death and who has within the last few days received Holy
Communion is bound by divine precept to receive Viaticum.
Although any good Catholic would certainly receive it again,
yet the obligation to do so is not clear, because the previous
Communion in all probability satisfies the divine law. If one
becomes dangerously ill on the day on which he has received
Holy Communion out of devotion, it was similarly a disputed
point whether he might, or was bound to, receive it again as
Viaticum. Ordinarily, indeed, no one should receive Holy
1 4 Lat., c. 21 ; can. 859.
i oa THE HOLY EUCHARIST
Communion twice on the same day, but in this case he may
do so, though he is not bound to do so, for the Code only says
that it is very much to be desired (Can. 864, sec. 2).
3. Holy Communion should not be given to those who have
lost the use of reason, but if they have lucid intervals it may
then be given if there be no danger of irreverence. To those
who are in danger of death, and have lost the use of their senses,
it may be given if they can swallow, and there is no danger
of irreverence ; and it should be given as Viaticum to criminals
condemned to death if they are in the proper dispositions.
Reverence forbids it to be given to those who are suffering
from constant coughing, and to those who cannot retain any
food on the stomach, unless they have been free from vomiting
for six hours or so.
ARTICLE II
The Dispositions Requisite for the Reception of the Eucharist
SECTION I
The Dispositions of the Soul
i . Besides having sufficient knowledge of what the Eucharist
is, he who receives it should be in the state of grace and free
from mortal sin. The* presence in the soul of venial sin un-
repented of is indeed a defect and an obstacle to the fullest
outpouring of God's grace, but it is not a new sin to receive
Holy Communion with only venial sins on the soul. But it
is a grievous sacrilege to receive the Eucharist while conscious
of being in mortal sin, " For he that eateth and drinketh un-
worthily, eateth and drinketh judgement to himself, not dis-
cerning the body of the Lord." It is not sufficient for one
who is conscious of mortal sin to recover the state of grace by
making an act of perfect contrition before Communion; he is
bound to go to confession. This is taught us by the Council
of Trent: 1 " Wherefore he who would communicate ought to
recall to mind the precept of the Apostle, Let a man prove
himself. Now ecclesiastical usage declares that necessary proof
to be, that no one conscious to himself of mortal sin, how
contrite soever he may seem to hijmself, ought to approach to
the sacred Eucharist without previous sacramental confession.
This, the Holy Synod hath decreed, is to be invariably observed
1 Sess. xiii, c. 7.
THE SUBJECT OF THE EUCHARIST 103
by all Christians, even by those priests on whom it may be
incumbent by their office to celebrate, provided the opportunity
of a confessor do not fail them; but if in an urgent necessity
a priest should celebrate without previous confession, let him
confess as soon as possible." No one, then, who is conscious
of mortal sin may go to Holy Communion without sacramental
confession, unless he is under some necessity of receiving the
Eucharist and there is no opportunity of going to confession.
There will be such necessity as is here contemplated if a priest
has to say Mass for his people on a day of obligation, or to
consecrate the Viaticum for a dying person, or if Communion
must be received to avoid scandal or to satisfy the Easter
precept. There is no opportunity of going to confession if
there is no priest present who can give absolution, and it would
be a serious inconvenience to go to one at a distance. Even
when in these circumstances a priest 'who is in sin has said
Mass with contrition indeed, but without confession, he is
commanded by the Council of Trent to go to confession as
soon as possible afterward. This is a strict ecclesiastical law,
but according to the mind of the Council it only binds priests,
not laymen (Can. 807, 856).
2. When one has been to confession with a view to going to
Holy Communion, but forgot to mention some grievous sin
which he afterward remembers, he is not obliged to repeat
his confession before Communion; it will be sufficient if he
mentions it in his next confession. The reason is because the
forgotten sin was indirectly forgiven by the absolution which
he received, and he has proved himself sufficiently according
to the words of the Apostle.
Even if there be not sufficient time to make a full confession
before Communion, still confession is obligatory, as it is also
when the penitent has reserved cases, for now in case of neces-
sity any confessor may absolve directly from reserved cases.
SECTION II
The Dispositions of the Body
i . Although God looks to the soul and its dispositions rather
than to externals, yet, as the Ritual says, those who com-
municate should approach the altar with humble deportment,
and their dress and everything about them should show forth
the reverence which they feel for the Blessed Sacrament.
Reverence taught the first Christians that the holy Eucharist
should be the first food taken in the day, so that fasting Com-
io 4 THE HOLY EUCHARIST
munion very soon came to be a universal practice in the Church.
St Augustine says that it was the custom throughout the whole
world in his time, and he traces it back to the times of the
Apostles. 1 The Council of Constance says: " This present
council declares, decrees, and defines, that although Christ
instituted and gave this venerable sacrament to his disciples
under both species of bread and wine after supper, yet not-
withstanding, the laudable authority of the sacred canons and
the approved custom of the Church has and keeps this observ-
ance that this sacrament ought not to be consecrated after
supper nor received by the faithful unless they be fasting,
except in case of sickness or of some other necessity allowed
and admitted by law and by the Church." 2
The rubrics of the Missal 3 contain the following: " If anyone
has not kept fast after midnight, though he has taken only
water or other drink or food, even as medicine, and in however
small a quantity, he cannot communicate or celebrate. If
remnants of food remaining in the mouth are swallowed, they
do not hinder Communion, since they are not taken as food,
but with the saliva. The same holds good if in washing the
mouth a drop of water is swallowed inadvertently " (cf. Can. 858).
The law of the Church, then, with reference to fasting
Communion is that the Eucharist may not be received by one
who has not kept strict fast from all food and drink, even in
the smallest quantity, since midnight. If Holy Communion
is received shortly after midnight, there is no obligation to
fast for some time before midnight, although reverence would
dictate the advisability of such a course. The law of fasting
has been made out of reverence for the Blessed Sacrament, so
that violations of it are against the virtue of religion and
sacrilegious.
To constitute a violation of the fast, what is taken must be
of the nature of food or drink. Pebbles, wood, paper, hairs
are not food, and if swallowed do not hinder Communion.
The same is probably to be said of bits of the nails of the
fingers, which some people have a habit of biting. The food
or drink must also be taken as food or drink, not per modum
respirationis, as is said, and must be from without, not from
within the mouth. Taking snuff, or smoking, or inhaling a
flake of snow^ with the breath, do not, then, hinder Communion,
nor the swallowing of blood from the gums or from inside
the lips.
1 Decretum Gratiani, c. 54, D. 2, de consec.
2 Sess. xiii. 3 De def. ix.
THE SUBJECT OF THE EUCHARIST 105
Midnight may be reckoned according to the time publicly
observed in the place, or by the true time according to the sun,
or by the mean time.
2. The law which prescribes fasting Communion is a positive
ecclesiastical law and admits of exception and excuse. Thus,
when in danger of death, from whatever cause, one may receive
Holy Communion not fasting. This may also be done if it
is not possible to abstain from Communion without grave
scandal or serious loss of reputation; or when the Blessed
Sacrament is in danger of being profaned ; or in order to com-
plete the sacrifice of the Mass left unfinished by another priest
from sudden illness; or probably in order to consecrate the
Viaticum for a dying person who otherwise would be deprived
of it. The common opinion is that Mass may not be said by
a priest not fasting merely in order that his people may hear
Mass on a Sunday; but this reason, taken together with some
other, might justify the action.
There used to be a controversy among divines as to whether
one who is sick but not in danger of death, and yet cannot
observe the fast before Communion, may be allowed sometimes
to communicate not fasting. This controversy has been set
at rest by the decree of Pius X, December 7, 1906, and by
Canon 858, sec. 2. The law now allows those who have been
sick in bed for a month, without a well-grounded hope of their
speedy recovery, although they may have taken something by
way of drink or medicine, to receive with the advice of their
confessor Holy Communion once or twice in the week.
After receiving Viaticum a sick person who continues to
live for some time afterward may receive Holy Communion
again, practically as often as his devotion urges him thereto
and the priest's occupations will allow of its being brought
to him. As long as he remains in danger of death, Holy Com-
munion should be given as Viaticum, with the form, Accipe
frater. No merely material uncleanness without moral fault,
or mere bodily unsightliness, is a bar to Holy Communion.
Married people are advised to abstain from marital intercourse
before going to Holy Communion, but there is no strict obliga-
tion to do so.
Viaticum should be given to children in danger of death if
they can distinguish it from ordinary food and pay it reverent
adoration (Can. 854, sec. 2).
PART II
THE EUCHARIST AS A SACRIFICE
CHAPTER I
THE NATURE OF THE SACRIFICE OF THE MASS
i. THE Council of Trent teaches that the Eucharist is not
only a sacrament but is also a sacrifice, instituted by our Lord
at the Last Supper to represent and perpetuate the memory
of the sacrifice which he was about to offer on the Cross, and
to apply its fruits to the souls of men. " He therefore, our
God and Lord, though he was about to offer himself once on
the altar of the Cross unto God the Father by means of his
death, there to operate an eternal redemption; nevertheless,
because that his priesthood was not to be extinguished by his
death, in the last supper, on the night in which he was betrayed
that he might leave to his own beloved Spouse the Church
a visible sacrifice, such as the nature of man requires, whereby
that bloody sacrifice, once to be accomplished on the Cross,
might be represented, and the memory thereof remain even
unto the end of the world, and its salutary virtue be applied
to the remission of those sins which we daily commit declaring
himself constituted a priest for ever according to the order of
Melchisedec, he offered up to God the Father his own body
and blood under the species of bread and wine ; and under the
symbols of those same things he delivered (his own body and
blood) to be received by his Apostles, whom he then consti-
tuted priests of the New Testament; and by those words, Do
this in commemoration of me, he commanded them and their
successors in the priesthood to offer (them) ; even as the Catholic
Church has always understood and taught." 1
A sacrifice is defined to be an offering of some visible object
made to God by the performance of a sacred action on the
part of a priest or publicly deputed minister, by which we
confess the supreme lordship of God. A sacrifice, therefore,
differs from an ordinary offering in that it is an act of public
worship paid to God alone by a duly authorized minister, who,
1 Trent, sess. xxii, c. i.
106
NATURE OF THE SACRIFICE OF THE MASS 107
by slaying the victim or in some way changing it, proclaims
the supreme dominion of God over all things.
The sacrifice of the Eucharist is called the Mass, and it
may be offered for all the ends for which the various sacrifices
of the Old Law were instituted by God. It is the supreme
act of worship which we pay to God, and under this respect
it is called latreutic; it is eucharistic, inasmuch as through it
we render thanks to God for his graces and benefits ; it is im-
petratory, inasmuch as it placates the anger of God, which has
been roused against sin and the sinner; and it satisfies the
justice of God and thus remits the punishment due to sin.
The introductory portion, up to the offertory, is called the
Mass of Catechumens, the principal parts of the Mass being the
offertory, the consecration, and the communion. There is
much difference of opinion among divines as to what constitutes
the essence of the sacrifice of the Mass. Some place its essence
in the communion, others in the consecration, others in the
consecration together with the communion. More probably
the consecration of both species, by which the death of
Christ is mystically represented by the separate consecration
of the bread and wine, contains the whole essence of the sacri-
fice. The question belongs rather to dogmatic than to moral
theology.
2. The Mass is a representation and a reproduction in an
unbloody manner of the sacrifice of our Lord on the Cross.
The principal minister, Jesus Christ, is the same; the victim
is the same; the only difference is the manner of offering, as
the Council of Trent teaches. A rightly ordained priest is the
secondary minister, who in the name of Christ and of the Church
offers the sacrifice to God. In so far as it is the action of
Christ, the Mass produces its effect like the sacraments ex opere
operate, and does not depend for its efficacy on the holiness
or other dispositions of the priest. But it is also the action
of the priest, and of the faithful in whose name he acts; and
under this respect it produces its effect ex opere operantis.
All the faithful, by virtue of the Communion of saints, but
especially those who assist at Mass, partake of its fruits and
benefits. Those fruits are, as we have seen, latreutic, euchar-
istic, impetratory, propitiatory, and satisfactory; so that in the
Mass we have a most excellent means of fulfilling all the ends
of religion. By it and through it we offer to God the highest
act of worship which it is in our power to offer; we give him
thanks for his continual benefits to us, we ask in the most
efficacious manner for what we and others stand in need of,
io8 THE HOLY EUCHARIST
we propitiate his just anger, and make satisfaction for our
sins.
The priest who celebrates performs an action in the highest
degree pleasing to Almighty God and meritorious for himself.
Moreover, just as prayer may be offered for a special intention,
and as the sacrifices of the Old Law were offered for the needs
of those who presented the victim, so the Mass also may be
celebrated by the priest for some definite intention. The special
or ministerial fruit of the Mass is thus applied by the priest
according to the intention with which he offers it.
3. Apart from special prohibitions, the Mass may be offered
for all those for whom the sacrifice of the Cross was offered,
and whom it can benefit. It may be offered for all the faithful
living and dead. The Council of Trent defined that the souls
in purgatory are helped by the sacrifices of the faithful, and
it is at least theologically certain that the fruits of the Mass
are to some extent, which is known to God, applied to them
ex opere operate, when Mass is said for that intention. It may
also be offered for the conversion of infidels, and in thanks-
giving for all the graces and glory which God has bestowed on
the blessed in heaven. The damned in hell can receive no
benefit from our prayers or sacrifices. According to the new
Code, Mass may be offered for anybody, living or dead, but only
privately, and with precautions to avoid scandal for excom-
municates, and, moreover, only for their conversion, if they
are to be. avoided as excommunicates (Can. 809 ; 2262, sec. 2, ii).
4. Infinite is the worth and dignity of the sacrifice of the
Mass, for it is the same as the sacrifice on Calvary, which was
capable of redeeming innumerable worlds. This is acknow-
ledged by all theologians, but they are not agreed as to whether
the actual fruit derived from a Mass is also infinite. Those
fruits are, indeed, greater or less in proportion to the disposi-
tions of the person to whom they are applied. But while
St Alphonsus and others are of opinion that a Mass offered
for any number of intentions will benefit each one as much
as if it were offered for him alone, others hold that the fruit
of a Mass is determinate in quantity, and that if it is offered
for many each one receives less than he would do if it were
offered for him alone. The latter seems the preferable opinion,
as it explains better the practice of the Church according to
which Mass is offered for individuals, living and dead. If the
first opinion were correct, charity would require that every
Mass should be offered for all who are in need, for no individual
would be the loser ; everyone would derive all the benefit from
NATURE OF THE SACRIFICE OF THE MASS 109
the Mass of which he was capable. This opinion, too, is
more in keeping with the nature of the sacraments, of which
the fruits seem to be limited in quantity. Otherwise there
would be no use in administering several sacraments to a dying
person when out of his senses, as is the practice of the Church.
Whichever opinion be true, it is against justice to offer only
one Mass in satisfaction of the obligation of saying several,
when several stipends have been received. Alexander VII
condemned the following proposition: "It is not against
justice to receive stipends for many Masses and to say only
one. Neither is it against fidelity, even if I promise on oath
to him who gives a stipend that I will not offer the Mass for
anyone else."
Nothing, however, prevents the priest from having a second
intention, as it is called, even when he isays Mass for a stipend.
By this second intention the priest intends that if for any reason
the Mass cannot benefit him for whom the first intention offers
it, then the fruit may go to the second. Or, if in fact it be
true that the fruit of a Mass is infinite, and capable of equally
benefiting any number of persons, then the priest by his second
intention desires that others should benefit by his Mass.
CHAPTER II
THE APPLICATION OF MASS
i. THE application of a Mass is the intention with which the
priest who says it wishes that it should accrue to the benefit
of a certain person or persons. Such a special act is only
required for the application of the ministerial or special fruit,
as it is called ; for the priest himself derives fruit from his Mass,
as likewise do those who assist at it, and the faithful in general,
without any special application.
As it belongs to one who prays to choose the intention for
which he offers up his prayer, so the application of his Mass
belongs to the priest. A superior may indeed prescribe the
intention for which a Mass is to be offered, but he who
celebrates the Mass must make the actual application. This
should be done before the consecration is finished, for, ac-
cording to the common opinion, the essence of the Mass
consists in the consecration, and an action cannot receive
its direction from an intention which is only formed after
the action is accomplished. Probably, however, it will be
sufficient if the intention is formed between the two con-
secrations.
2. It is not necessary that the intention by which Mass
is applied should be actual or even virtual; it is sufficient
if it be habitual, or made once for all and not afterward
revoked.
When Mass is said for a stipend it is not necessary for the
priest to know precisely what the intention is for which he is
desired to say Mass ; it is sufficient if he say Mass for the inten-
tion of the giver of the stipend. Clement VIII forbade priests
to offer Mass for the first who should give a stipend for that
purpose, and if no one actually intended to ask for a Mass
when a priest celebrated with such an intention the Mass
would not be applied.
A priest does not sin if he celebrates without any special
intention, but it is always better to have one, as then the Mass
will be more fruitful. When a priest celebrates for a stipend
he may not divide the fruits of the Mass, applying the satis-
factory or other fruit to the intention of the giver, and another
no
THE APPLICATION OF MASS in
fruit to some other intention. The whole fruit of the sacrifice
must go to the giver of the stipend. When, however, a Mass
is ordered by a superior in thanksgiving for some blessing, it
will not be wrong to apply the other fruits for other in-
tentions which in no way interfere with that prescribed by
authority.
CHAPTER III
THE OBLIGATION OF APPLYING MASS
i. PRIESTS may be bound to say Mass for a definite intention
on various grounds. Those who hold a benefice are frequently
obliged to say Mass, either every day or on certain fixed days,
for the intentions prescribed by the founder of the benefice.
The conventual Mass, which should be said every day in
cathedral, collegiate, and conventual churches, ought to be
applied for the benefit of the souls of benefactors.
The Council of Trent 1 declares that by divine precept it is
enjoined on all who have the cure of souls to offer sacrifice
for ..their flock. Bishops, therefore, and regular prelates, who
have the full cure of souls, are bound by divine law to say Mass
for those committed to their charge. Parish priests are of
ecclesiastical institution, and they have not the full cure of
souls committed to them. How far their duties extend depends
on ecclesiastical law. That law obliges them as well as bishops
to say Mass for their flock every Sunday and holy day of obliga-
tion, even on those feast-days of obligation which have been
suppressed. This obligation is at the same time real and
personal. It is real in the sense that if for any reason a bishop
or parish priest cannot fulfil it on any particular day, he is
under the obligation of providing that it should be fulfilled by
some other priest. It is personal in the sense that they must
as far as possible fulfil it in person; but if a parish priest be
lawfully absent from his parish, he may either apply Mass for
his people in the place where he is, or have one applied in his
parish by the priest who takes his place (Can. 466, sec. 5).
Quasi-parish priests are bound to offer Mass for their people
on the more solemn feasts mentioned in Canon 306.
2. The ecclesiastical superiors of priests may issue a com-
mand that Mass be applied for some special intention. When
this is done the command must, of course, be obeyed by all
whom it concerns. The matter of such a precept is certainly
grave, and so there will be a serious obligation of complying
with it, if the superior intended to issue a strict precept. This,
however, is not always or necessarily the case ; and in particular
1 Sess. xxiii, c. i, de Ref.
112
THE OBLIGATION OF APPLYING MASS 113
instances, if there is question of determining the gravity of
an obligation arising from such a precept, the intention of the
superior who gave it will have to be examined according to the
ordinary rules of interpretation.
3. A priest may bind himself by promise to say Mass for
a particular intention, and then he will be bound to say it either
in justice, or at least out of fidelity, just as he is bound to fulfil
his other promises.
4. Finally, priests are bound in justice to say Mass for the
intention of those from whom they have received a stipend
for the purpose. The stipend is not the price of the Mass,
for this cannot be bought and sold without committing the
grave sin of simony. The stipend is given to provide for the
support of the priest, who in return undertakes to say Mass
for the giver of the stipend. In the early Church the faithful
used to bring bread and wine to the priests, who selected from
what was offered enough for the sacrifice, and reserved the
rest for their support. This was found to be inconvenient,
and in course of time the faithful who wished Mass to be
offered for their intention contributed a sum of money for the
support of the priest. This method, after all, is in substance
what St Paul alludes to: " Know you not that they who work
in the holy place eat the things that are of the holy place ; and
theyt hat serve the altar partake with the altar p" 1 Simony
may, indeed, be committed in transactions concerned with the
Mass and stipends, but such sordid practices should not be
presumed to be of ordinary occurrence (Can. 824).
Although a priest who accepts a stipend for a Mass does
not sell the Mass, yet he enters into a strict contract with the
giver of the stipend, and binds himself in justice to apply the
Mass for his intention. He will, therefore, commit a grave
sin against justice if he fail to fulfil his obligation, and he must
restore the stipend which he received, but which he has no title
to keep. Not only is the priest who has accepted a stipend
bound in justice to say a Mass, but justice also requires that
he should observe all the conditions of the contract into which
he entered concerning the quality of the Mass, the place, and
the time of celebration.
The law of the Church on the matter may be stated as
follows :
According to the received and approved custom and practice
of the Church, it is lawful for any priest who says and applies
Mass to receive an alms or stipend for it.
1 i Cor. ix. 13.
ii. 8
ii4 THE HOLY EUCHARIST
But whenever a priest says Mass more than once in the day,
if he has applied one Mass by a title of justice, except on
Christmas Day, he cannot receive a stipend for another Mass
on the same day, but he may receive some compensation due
for some extrinsic reason.
It is never allowed to apply Mass for the intention of someone
who will offer a stipend and ask for the application of a Mass
but has not yet done so, and retain a stipend given afterwards
for a Mass said beforehand.
Nor is it allowed to receive a stipend for a Mass which is
due in justice and applied by another title. Nor to receive
a double stipend for the application of the same Mass. Nor
to receive one stipend for the mere celebration of Mass, and
another for the application of the same Mass, unless it is certain
that one stipend was offered for the mere celebration of the
Mass without its application.
Those are called manual stipends which are offered for
Masses by the faithful, as it were, out of hand, whether in
order to satisfy their own devotion or to fulfil an obligation
imposed on them by the will of a testator even in perpetuity.
The stipends of funded Masses are said to be like manual
Masses which cannot be applied in the proper place, or by those
who ought to apply them according to the laws of the founda-
tion to which they belong, and so by law or by an indult of the
Holy See they have to be given to other priests to be satisfied.
Other stipends which are received from the revenue of
foundations are called funded or foundation Masses.
Let all appearance even of trading or trafficking with stipends
for Mass be altogether avoided.
As many Masses must be said and applied as stipends were
given and accepted, however small they were.
The obligation does not cease even though the stipends
already received for Mass have been lost without any fault
on the part of him who was burdened with their celebration.
If anyone offers a sum of money for Mass stipends without
indicating the number of Masses which he wishes to be said,
let the number be computed according to the tax of the place
where he lived, unless it must be lawfully presumed that his
intention was different.
It belongs to the local Ordinary to determine the manual stipend
for Masses in his diocese by a decree made in diocesan synod as
far as possible ; nor is it lawful for a priest to exact a larger sum.
Where there is no formal decree of the Ordinary on the
point, let the custom of the diocese be observed.
THE OBLIGATION OF APPLYING MASS 115
Religious, even though they be exempt, ought to abide by
the local Ordinary's decree or the custom of the diocese in the
matter of the manual stipend of Masses.
A priest may receive a larger stipend for the application of
Mass if it is offered voluntarily, and also a less, unless the local
Ordinary has forbidden it.
It is presumed that the offerer of a stipend asked only for
the application of Mass, but if he expressly stipulated that
any circumstances should be observed in the celebration of
Mass, the priest who accepts the stipend should comply with
the desire expressed.
If the time for the celebration of Masses was expressly
determined by the offerer of the stipend, the Masses must by
all means be celebrated at that time.
If the offerer expressly determined no; time for the celebration
of manual Masses
(1) Masses offered for an urgent intention must be offered
at the time required by the circumstances and as soon as
possible.
(2) In other cases the Masses must be offered within a
reasonable time in proportion to the greater or less number of
Masses. The decree of the Sacred Congregation of the
Council, May n, 1904, assigned one month from the time
of receiving the stipend as the limit within which one Mass
is to be said, six months as the limit for one hundred Masses,
and a longer or shorter period for a greater or less number.
If the offerer expressly left the time of celebration to the
judgement of the priest, the priest may say the Mass at what
time he pleases, but no one is allowed to receive more stipends
than he can satisfy in one year.
In churches in which, on account of the special devotion of
the faithful, stipends for Mass are so abundant that all cannot
be said there within the proper time, let the faithful be in-
formed by a notice placed in an open and conspicuous place
that the stipends offered will be satisfied either there, when it
can be done conveniently, or elsewhere.
Let one who has Masses to be said by others distribute them
as soon as may be, but the lawful time for their celebrating
begins from the day on which the priest who has to say them
received the same, unless the contrary is certain.
Those who have a number of Masses of which they can
freely dispose may give them to priests on whom they can rely,
provided that they know that they are unexceptionable, or are
recommended by the testimony of their own Ordinary.
n6 THE HOLY EUCHARIST <
Those who have given Masses, which they have received
from the faithful or which are entrusted to them, to others to
be said by them, remain bound by their obligation until they
receive notice that the stipends have been received and the
obligation accepted.
One who sends manual stipends to others ought to send
the whole sum which he has received, unless either the offerer
expressly allows him to retain a portion, or it is certain that
the excess above the diocesan tax was given out of personal
considerations.
In Masses which are like manual Masses, unless the intention
of the founder forbids it, any excess may lawfully be retained,
and it is sufficient to send only the manual stipend of the
diocese in which the Mass is celebrated, if the large stipend
takes the place of a part of the dowry of the benefice or pious
foundation.
Each and all administrators of pious foundations or persons
who are bound in any way to fulfil obligations of having Mass
said, whether ecclesiastics or laymen, towards the end of each
year must give the Masses which have not yet been said to their
Ordinaries according to the method to be defined by them.
This period is to be interpreted in such a way that in the
Masses like manual Masses the obligation of handing them
over runs from the end of the year within which they ought to
have been said ; but in manual Masses after a year from the day
of undertaking them, unless the offerer determined otherwise.
The right and the duty of seeing that Mass obligations be
fulfilled belongs to the local Ordinary in secular churches; in
the churches of religious it belongs to their superiors.
Let rectors of churches and of other pious foundations,
whether secular or religious, in which Mass stipends are wont
to be received, have a special book in which they note the
number of stipends for Mass received, the intention, the
amount of the stipend, and the celebration of the Masses.
The Ordinaries are under the obligation at least every year
of examining these books in person or by deputy.
.Moreover, local Ordinaries and religious superiors who give
Masses to their subjects or to others to be said should at once
put down in- order in a book the Masses which they have received
with their stipends, and should take care, as far as they can,
that the Masses be said as soon as possible.
Indeed, all priests, whether secular or religious, ought to
note accurately what Mass intentions they have received and
which they have satisfied (Can. 824-844).
CHAPTER IV
THE TIME FOR SAYING MASS
i . BY the common law of the Church Mass may only be said
once in the day except on Christmas Day and on the day of
the Commemoration of the Holy Souls (November 2), when
a priest may say three Masses. Mass may be said on every
day in the year, but on the three last days in Holy Week Low
Mass is forbidden. On those days in cathedral, collegiate,
and parish churches, High Mass should be sung as far as
possible. In parish churches where High Mass cannot be
sung, but three or four clerics can be got to serve, the ceremonies
should be carried out according to the memorial of rites drawn
up by command of Benedict XIII. In parish churches where
not even this can be done, the bishop may give leave for a
Low Mass on Holy Thursday, and he may also, for the con-
venience of the sick, allow a Low Mass to be said in other
churches before the High Mass.
2. Mass may be said twice by a priest on the same day if
the necessity of the people requires it. The bishop is the
judge as to when it is necessary, as it will be if the people cannot
all get to one Mass on account of the distance at which they
live from the church, or because the church is too small to
contain them all at once. Moreover, in missionary countries
it is quite common for priests to have a special faculty of
celebrating twice in the day on Sundays and holy days of
obligation. The only cause recognized for the lawful use of
this faculty is the necessity of the people, of which again the
bishop is the judge, and it is expressly forbidden to take a
stipend for the second Mass. The use of the faculty is not
lawful when another priest can be got to say the Mass required
by the necessity of the people.
3. According to the present discipline of the Church, Mass
may not be begun before one hour before daybreak nor after
one hour after midday (Can. 821, sec. i). The necessity of
the people or of the priest is a sufficient reason for celebrating
somewhat earlier and later than the ordinary times, and regulars
have privileges by which they may for just cause begin Mass
much earlier and much later than the legal time.
117
n8 THE HOLY EUCHARIST
His Holiness Pius X, by a decree of the Holy Office dated
August i, 1907, graciously permitted a priest in future to say
three Masses or only one according to the rubrics on the night
of the Nativity in all convents of nuns who have enclosure,
and in other religious institutions, pious houses, and clerical
seminaries, in which the Blessed Sacrament is habitually
reserved. Holy Communion may be administered to all who
ask for it at these Masses, and anyone who hears one or more
of them satisfies the precept of hearing Mass on that day. 1
1 Acta Sanctae Sedis, xl, p. 478; Can. 821, sec. 3.
CHAPTER V
WHERE MASS MAY BE SAID
i. BY ecclesiastical law Mass may regularly be said only in
churches and oratories dedicated solely to the service of God,
and therein on duly consecrated altars. 1 If, however, there
be no church in the place, or if it be in ruins, or if it be too
small to hold the number of worshippers, Mass may be said
in a tent or in the open air on a portable altar with the leave
of the bishop, if time permits of this being asked.
A bishop can erect public oratories in which Mass may be
said in religious institutions, in monasteries and convents, in
seminaries, hospitals, prisons, and in the bishop's own residence,
bishops also enjoy a personal privilege of saying Mass on
a portable altar even in private houses where they happen to
be staying.
The Council of Trent 2 forbade bishops to allow priests to
say Mass in private houses, and in consequence of this law and
of repeated answers of the Roman Congregations, it is now
settled that bishops have no power to grant leave for purely
domestic oratories in private houses (Can. 822).
The power to do this is now reserved to the Holy See.
If there is an oratory duly erected on board ship, Mass may
be said there when circumstances permit. The Holy See also
grants leave for Mass to be said on board ship on a portable
altar even when there is no permanently erected oratory on
board. A priest who has obtained and desires to use this
privilege is bound to observe the conditions under which it
is granted. Those conditions are that the ship is safe and at
a distance from shore, that the sea is tranquil, and that another
priest or a deacon is at hand to hold the chalice in case of
danger when the ship rolls. Mass should not be said in the
passengers' berths unless everything has been arranged so as
to show due reverence to the Blessed Sacrament.
2. If a church or public oratory has been polluted by the
perpetration therein of certain crimes, it is forbidden to say
Mass there until it has been reconciled. The crimes which
1 Trent, sess. xxii, Decree on things to be observed in Mass.
2 Loc. cit.
"9
120 THE HOLY EUCHARIST
pollute a church, provided that they are certain, notorious and
committed in the church itself, are: homicide, the grave and
injurious shedding of blood, the putting of the church to
impious or sordid uses, the burial therein of an unbaptized
person or of an excommunicated person after a declaratory or
condemnatory sentence (Can. 1172).
It is not allowed to celebrate the divine offices, to administer
the sacraments, or to bury the dead in a polluted church before
it has been reconciled.
If the church is only blessed it can be reconciled by its rector
or by any priest with the presumed leave at least of the rector.
If the church is consecrated, its reconciliation belongs to the
Ordinary of the place or to the higher superior if it is a church
of exempt religious, or to a priest delegated by either of them.
But in a case of grave and urgent necessity, the rector of a
consecrated church can reconcile it and inform his Ordinary
afterwards. The reconciliation of a blessed church can be
done with common holy water. If the church is consecrated,
the water should be specially blessed, but the priest who is
deputed to reconcile the church can bless the water as well
as the Ordinary (Can. 1176, 1177).
Private oratories are not polluted, even if any of the above
crimes be committed in them, and so they do not need recon-
ciliation.
Mass may not be said in a church or oratory which has lost
its consecration. This happens when the greater part of it
is destroyed at one and the same time, or when a new portion
is added to it and what is added is greater than the old part.
A church does not lose its consecration if the roof falls in or
if the plastering of the walls is renewed. When a church loses
its consecration it must be reconsecrated, or at least blessed,
before Mass be again said in it.
When a church is polluted the altars in it are also polluted,
but altars do not lose their consecration merely because the
churches in which they are placed are desecrated. A fixed
altar loses its consecration if the altar-stone is loosed from its
foundation, and both fixed and portable altars lose their con-
secration if the tomb where the relics are placed is violated,
or in consequence of a large fracture.
3. The sacred vessels and vestments lose their consecration
when they are broken or torn so as to lose their shape, or when
they are put to improper uses or exposed for public sale (Can.
1305). When the sacred vessels or vestments have lost their con-
secration, they must be mended and be reconsecrated before use.
CHAPTER VI
REQUISITES FOR SAYING MASS
BESIDES what we have seen in the last chapter, the Missal
prescribes various other requisites for the due celebration of
Mass. The following especially call for mention here : three
altar-cloths, two wax candles, the ordinary priestly vestments,
a server, a chalice and paten, clean corporal and purificator of
linen, and a Missal. The altar linen and the vestments should
be blessed by a bishop or by a priest with specially delegated
faculties for the purpose.
The chalice and paten should be of silver, and gilded at
least on the inside. They should also be consecrated by a
bishop. The difficulty of procuring wholly wax candles was
reported to the S.R.C., which answered, December 14, 1904,
that bishops should as far as possible see that the two candles
for Mass should at least have a greater proportion of beeswax
than of other material, and that private priests need not anxiously
inquire about the quality of the wax.
Of the vestments, at least the alb, chasuble, stole, and maniple
are required under grave precept; the amice and the girdle,
as also a pall, purificator, and crucifix, are required under a less
serious obligation.
The server should be a Catholic and of the male sex, but
if one cannot be procured, a woman may make responses from
outside the altar rails (Can. 813).
It is a disputed point among theologians whether the proper
colour of the sacred vestments is of strict precept; and they
deny that there is a strict precept with regard to the use of a
veil for the chalice, a burse, and a stand for the Missal.
121
CHAPTER VII
THE RUBRICS OF THE MISSAL
i. IN the rubrics of the Missal the Church has laid down
a series of minute rules for the celebration of Mass. Their
number and minuteness show her solicitude concerning the
proper performance of this divine sacrifice. Those which
have reference to the Mass itself are in general preceptive and
bind under pain of sin. Grave sin, then, is committed by
violating the rubrics of the Mass in serious matters ; venial sin
is committed by their violation in smaller matters. If a notable
or important portion of the rite is omitted, or if notable addi-
tions are made to it by private authority, or any considerable
change be made in it, there is a serious violation of the law.
The rubrics which ordain that certain portions of the Mass
be said in a loud or low or middle tone of voice only bind under
venial sin, and so, if their observance would cause annoyance
to other priests who are saying Mass, they cease to bind.
Similarly, if through infirmity a priest is unable to observe
some smaller rubrics, it is not the mind of the Church that
he should be obliged to abstain from celebrating the holy
mysteries.
It is a probable opinion that those rubrics in the Missal
which have reference to what should be done out of Mass
are only directive, not strictly preceptive so as to bind under
pain of sin.
2. The general rule is that the Mass must agree with the
office which the calendar prescribes to be said. However,
by the decree S.R.C., December 7, 1895, when Mass is said
in a church or public oratory which is not one's own, which
uses a different calendar, and celebrates a feast of double or
higher rite, the Mass must always agree with the calendar of
the church or public oratory, and not with the office of the
celebrant.
3. When Mass has been once begun it may not be broken
off without grave reason, even before the consecration. After
the consecration a still graver cause is required, as, for example,
the sudden breaking out of fire in the church, when the sacred
species might be at once consumed and the Mass brought to
12,2
THE RUBRICS OF THE MISSAL 123
an end. Moreover, even temporary interruptions of Mass are
forbidden except after the Gospel, according to custom. The
prohibition is stricter according to the greater solemnity of
the part of the Mass where there is question of interruption.
However, for good cause, an interruption may be permitted
before the offertory; to justify an interruption between the
offertory and the consecration a graver cause is required, and
a very grave cause after the consecration.
BOOK VI
THE SACRAMENT OF PENANCE
CHAPTER I
THE NATURE OF PENANCE
i . PENANCE is both a virtue and a sacrament of the New Law.
For as the Council of Trent teaches: " Penitence was indeed
at all times necessary in order to attain to grace and justice
for all men who had defiled themselves by any mortal sin,
even for those who begged to be washed by the sacrament
of Baptism: that so, their perverseness renounced and amended,
they might with a hatred of sin and a godly sorrow of mind
detest so great an offence of God. Wherefore the prophet
says, ' Be converted and do penance for all your iniquities,
and iniquity shall not be your ruin.' The Lord also said,
' Except you do penance, you shall all likewise perish ' ; and
Peter, the prince of the Apostles, recommending penitence to
sinners who were about to be initiated by Baptism, said, ' Do
penance and be baptized every one of you.' ' 51 God, therefore,
has always required repentance or penance on the part of the
sinner as a necessary condition for forgiveness. The virtue
of penance may be defined as a habit inclining the sinner to
hatred and detestation of his sin. He may be moved to this
hatred and detestation by various motives, as, for example, by
the thought of the goodness of God, who deserves better treat-
ment than to be offended by the sinner, by the feeling of
gratitude toward God for his benefits and mercies, by the
sentiment of justice which induces the sinner to make repara-
tion for the wrong which by sin he has inflicted on the majesty
of God. Penance may thus be a general virtue with various
motives, but theologians agree that it is also a special virtue
with a particular motive of its own. More commonly they
assign as this motive the hatred of sin as being an offence
against God, something at which God is rightly and justly
angered and displeased, and for which satisfaction must be
made to God before peace and harmony can be again established
between him and the sinner.
1 Sess. xiv, c. i.
125
ia6 THE SACRAMENT OF PENANCE
Our Lord Jesus Christ instituted the sacrament of Penance,
by which the sins committed after Baptism might be forgiven
on the sinner's repentance. As the Council of Trent teaches :
" Nevertheless, neither before the coming of Christ was peni-
tence a sacrament, nor is it such since his coming for anyone
previously to Baptism. But the Lord then principally instituted
the sacrament of Penance when being raised from the dead he
breathed upon his disciples, saying, ' Receive ye the Holy
Ghost: whose sins you shall forgive they are forgiven, and
whose sins you shall retain they are retained.' By which
action so signal, and words so clear, the consent of all the
Fathers has ever understood that the power of forgiving and
retaining sins was communicated to the Apostles and their
lawful successors for the reconciling of the faithful who have
fallen after Baptism." 1
Penance may be defined as a sacrament of the New Law in-
stituted by Christ after the manner of a judicial process for the
remission of sins committed after Baptism by a priest's absolution
given to the contrite sinner who has confessed his sin to him.
This sacrament is instituted after the manner of a judicial
process, which may be gathered from the very words of insti-
tution: " Whose sins you shall forgive they are forgiven, and
whose sins you shall retain they are retained," said our blessed
Lord; not, of course, that the Apostles were empowered to
forgive or not to forgive sins according to their own pleasure.
They were bound to exercise the power entrusted to them
according to the intention of him who had given it, so that
as faithful dispensers of the mysteries of God they were to
forgive the sins of those who were worthy of forgiveness, and
to dismiss without forgiveness those who were unworthy.
But how could they know who was worthy and who was un-
worthy, and what sins they could forgive and what they could
not ? Evidently only by the sinner acknowledging his sins
and showing that he repented of them, or on the contrary by
his showing the want of the necessary dispositions. And so
we gather from the words of institution of this sacrament what
the tradition of the Church teaches, that for the forgiveness
of sin in the sacrament of Penance the sinner must in sorrow
confess his sin, and then it will be forgiven by the absolution
of the priest. In this we have the substance of a judicial
process, inasmuch as the sinner is the criminal who is witness
against himself, and the priest is the judge who, according to
the merits of the case, absolves the sinner and remits the sin
1 Sess. xiv, c. i.
THE NATURE OF PENANCE 127
in the name of God, or by not absolving the unworthy sinner
retains his sin and condemns him to go unpardoned.
2. The effects of a fruitful reception of this sacrament are
the forgiveness of all mortal sins and of all venial sins which
are confessed with due sorrow, the consequent remission of the
eternal punishment due to mortal sin, and a partial remission
according to the dispositions of the penitent of the temporal
punishment which his sins have deserved.
Sins which are confessed to a priest who has the requisite
jurisdiction to absolve them are forgiven directly by virtue
of the power of the keys. On the other hand, if without fault
on the part of the penitent some sin is not confessed and the
penitent has the requisite sorrow, the sin will be forgiven in-
directly, inasmuch as the absolution will take its effect and
infuse sanctifying grace into the soul, .and this sanctifying
grace expels all grievous sin from the sipul. The absolution
will also be indirect when the priest has not faculties for some
sin or sins confessed, but for some special reason he is justified
in giving the penitent absolution.
3. The Council of Trent 1 teaches that " This sacrament of
Penance is for those who have fallen after Baptism necessary
unto salvation, as Baptism itself is for those who have not as
yet been regenerated." This sacrament, then, like Baptism,
is a necessary means for salvation for all who have committed
grave sin after Baptism. There is, consequently, for all such
a divine precept which obliges them to go to confession. They
must fulfil this precept at any rate before death, and the Church,
using the power given her by her divine Founder, has obliged
all who are conscious of being in mortal sin to go to confession
at least once a year (Can. 906). If there is no opportunity of
going to confession, one who has fallen into grievous sin can
through the mercy of God obtain pardon for it by making an
act of perfect contrition or of pure love of God. These acts
implicitly contain a desire to receive the sacrament of Penance
and to fulfil all other obligations imposed by God and by lawful
authority. Even after sin has been forgiven by an act of
perfect contrition or of pure love of God, there will always
remain the obligation of confessing it, if it be mortal, when the
time for the annual confession arrives or the opportunity occurs.
Those who do not fall into grievous sin are under no obligation
of going to confession, though, of course, they are the last to
neglect the use of so powerful a means as frequent confession
to attain purity of soul and to obtain great graces from God.
1 Sess. xiv, c. 2.
CHAPTER II
THE MATTER OF PENANCE
i . THE remote matter of the sacrament of Penance is the sins
which have been committed after Baptism, for sins committed
before Baptism, when this is received in adult age, are forgiven
by Baptism. The matter of Penance is necessary, or free but
sufficient. Mortal sins which have never been directly absolved
are the necessary matter of confession, for as the Council of
Trent teaches, 1 every mortal sin committed after Baptism
must be submitted to the keys. The same council teaches
that venial sins may be confessed, but that there is no necessity
to do so, and so they are sufficient but free or optional matter
of the sacrament. The same is true also of mortal sins which
have been already absolved directly, for the penitent may with
fruit renew his sorrow for them, and nothing prevents the
sentence of absolution being repeatedly pronounced over
them. The previous sentence of absolution is, as it were,
confirmed anew, and thereby fresh grace is infused into the
soul (Can. 901, 902).
2. A doubt may sometimes arise as to whether a person
has ever been baptized, or as to whether his Baptism was valid,
and after Baptism has been conditionally administered in such
a case so as to make so important a matter secure the question
remains whether this person must make a general confession
of past sins or not. If a Catholic has been in the habit of going
to confession and making good ones as far as he knows, there
will be no necessity to repeat those confessions after conditional
Baptism. For if he was baptized before, his confessions would
be valid, and if he was not baptized, his past sins are not matter
for confession.
A non- Catholic, however, who receives conditional Baptism
is in a different position. His past sins have not been con-
fessed ; if he was baptized before, he is bound to confess them ;
if he was not baptized before, they are not matter for the sacra-
ment of Penance. What is he bound to do when the fact of
Baptism is uncertain, and at most it can be said that there are
probabilities on either side ?
1 Sess. xiv, c. 5.
128
THE MATTER OF PENANCE 129
The First Synod of Westminster 1 prescribes that a non-
Catholic already probably baptized who is received into the
Catholic Church must, after conditional Baptism, make a full
confession of the sins of his past life. This decree was con-
firmed by the Holy Office, December 17, 1868, and several
other decrees and instructions in the same sense have been
issued. In practice, then, and in countries which are bound
by these decrees and instructions, as are England and the
United States, the question is settled by positive law. With
regard to other countries which are not directly subject to the
foregoing decrees and instructions, it is still a matter of con-
troversy among divines whether a full confession is obligatory.
In the opinion of several, there is no universal law, divine or
human, which makes confession obligatory in such a case. 2
3. The proximate matter of Penance, according to the more
common opinion, is the acts of the penitent: contrition, con-
fession, and satisfaction. According to the Thomist doctrine,
the acts of the penitent constitute the material part of the
sacrament, so that they are the matter out of which the sacra-
ment is made, and are an essential part of the sacramental sign.
If the Council of Trent calls them the quasi-matter, 3 it is not
because they are not the true matter in the sense just explained,
but because they are not the matter which is used externally
in the confection of the sacrament, as is water in Baptism, or
chrism in Confirmation.
On the other hand, the Scotists allow, indeed, that contrition,
confession, and satisfaction on the part of the penitent are
necessary conditions for the administration of Penance, but
they hold that the whole sacramental sign is contained in the
words of absolution. These words alone are used by the
minister of the sacrament, and they signify the grace conferred
by the sacrament. Taken materially, they constitute its matter ;
inasmuch as they signify the giving of grace for the remission
of sins, they constitute its form. This opinion has never been
condemned by the Church, and it remains probable, but the
question belongs rather to dogmatic than to moral theology.
4. It is not sufficient to confess one's sins in general terms,
and if they are grievous the law of God requires that they be
confessed according to number and species, as the Council of
Trent teaches. 4 As we have seen, venial sins are sufficient
matter for absolution, but there is no necessity to confess them.
But supposing that a penitent has only venial sins, and he
1 D. xvi, n. 8. 2 Ferreres, Comp. Theol. Mor., ii, n. 527.
3 Sess. xiv, c. 3. 4 Sess, xiv, c. 5.
II. 9
130 THE SACRAMENT OF PENANCE
wishes to confess them, what kind of confession is necessary
and sufficient ? Will it be enough to say, " I accuse myself
of some small sins and ask for absolution " ; or " I accuse myself
of all the sins of my past life, and I have nothing serious " ?
All divines agree that it will be sufficient to mention some
one sin in particular in this case, or to mention the virtue or
obligation which has been violated, as by saying, " I accuse
myself of slight negligence in prayer," or "of small faults
against charity." They differ about the lawfulness of using
a mere general formula. Such a method of confessing is
against the practice of the Church, which, as St Thomas says,
we should always follow ; it is also liable to abuse, for penitents
cannot always decide what is serious and necessary matter
for confession or not, and shame might easily lead them to be
content with generalities when they should give particulars.
However, there is something to be said for the other view,
inasmuch as some sort of confession is all that is required for
the essence of the sacrament, and when there are only venial
sins to be confessed there is no certain law which prescribes
confession according to number and species, or even more
than in general terms. This opinion is at any rate sometimes
of use, as it may at times enable confessors to be satisfied with
generalities when they cannot get more.
5. The solution of questions about the obligation of con-
fessing doubtful sins largely depends on what system of moral
theology is followed. The following principles are generally
approved by probabilists :
(a) When the penitent doubts whether he has been guilty
of some sinful act or not, he is not bound to confess it, for he
cannot be said to be conscious of sin, and a certain obligation
cannot arise from an uncertain source.
(b) When the doubt is as to whether full consent was given
to what would have been a grave sin if that were the case, the
question should be settled by recourse to presumptions. If
in other cases consent has usually been given, the presumption
is against the penitent, and he should confess the sin as it is
in his conscience; otherwise there will be no obligation to
do so.
(c) If the doubt is whether the sin were mortal or venial,
there is no obligation to confess it, for the penitent is not con-
scious of mortal sin; and only such are bound to confess.
(d) If the doubt is whether a mortal sin which was certainly
committed has ever been confessed, we must distinguish; if
there be no good ground for thinking that it has been confessed,
THE MATTER OF PENANCE 131
the obligation will still remain; if, on the contrary, there be
good ground for thinking that the sin has been confessed,
there will be no obligation of confessing it again.
(e) It is generally better for penitents, unless they are
scrupulous, to confess doubtful sins, as it conduces to peace of
conscience, and is a meritorious act of humility.
When a doubtful sin has once been confessed as such there
will be no obligation to confess it again, even though subse-
quently the penitent becomes sure that he committed the sin.
The sin was confessed as it was on the penitent's conscience,
and it was absolved directly.
According to the common opinion, although there is no
strict obligation to confess a mortal sin which is doubtful, or
which has probably been confessed, yet one should not go to
Holy Communion in such a state of doubt without either going
to confession and confessing at least some sin, or making an
act of contrition. For a man should prove himself before
receiving Holy Communion, and have a well-grounded belief
that he is in a state of grace.
If a penitent mentions only doubtful matter for absolution,
the confessor should secure certain matter before giving abso-
lution. Although a penitent may confess only optional matter,
yet he has a right to absolution founded on the tacit contract
which the confessor entered into with him when he admitted
him to confession.
CHAPTER III
CONTRITION
CONTRITION is the first of the acts of the penitent which con-
stitute the matter of the sacrament of Penance. It is defined
by the Council of Trent to be a heartfelt sorrow and detestation
of sin committed, with a purpose of not sinning again. In
this section we will treat of contrition apart from the purpose
of amendment, and in the following section, of the purpose
of amendment.
SECTION I
The Nature of Contrition
1. A heartfelt sorrow is not quite the same thing as a hatred
or detestation of sin. Sorrow is a pain which we feel on
account of the presence of some evil or the absence of some
good ; hatred is an aversion for some evil which is past. Hatred
of sin, consequent aversion for it, and a turning away from it
is the chief element in contrition; for if we have this hatred
we shall have sorrow for sin regarded as a present evil, we
shall turn away from it as a past evil, and we shall propose to
flee from it in the future. If, then, we have this hatred of sin,
we shall have sorrow and a purpose of amendment; we shall
have true contrition.
That sorrow for sin which arises from the perfect love of
God is called contrition in the full and strict sense; sorrow for
sin arising from less perfect motives, as from the fear of hell or
the moral turpitude of vice, is called attrition. Ordinarily the
word contrition is used indifferently of both kinds of sorrow.
2. Contrition or penitence or repentance is, as we have
already seen, according to the teaching of the Council of Trent,
a necessary condition for the forgiveness of sin by God. God
will not forgive sin unless the sinner turn from his sin and
approach him by sorrow of heart. Contrition, then, is a
necessary means of salvation for all who have fallen into grievous
sin. It is also matter of divine precept which must be fulfilled
at least when the sinner is in danger of death, for then it becomes
of supreme necessity, and also sometimes during life. The
132
CONTRITION 133
Church has determined this divine precept by commanding
all who have come to the use of reason and have fallen into
sin to go to confession at least once a year. Moreover, repent-
ance for sin becomes necessary when any action has to be
performed which for its due performance requires the agent
to be in the state of grace. Furthermore, inasmuch as one
who is deprived by sin of the grace of God cannot long resist
temptation and will fall again and again before long, the sinner
is obliged to rise from his sin in order to avoid repeated falls.
Of course it is better, and the sinner is to be urged, by all
means, to rise at once when he has had the misfortune to fall
into sin. He should never sleep while he is conscious of being
out of the friendship of God. Still he is not bound under pain
of committing a new sin to repent immediately after committing
sin. It will be sufficient if he repent at least when repentance
becomes necessary according to the doctrine which has just
been laid down.
3. Not every sort of sorrow is sufficient to justify the sinner,
even with the help of the sacrament of Penance. Although
perfect love of God suffices to reconcile the sinner with God,
though it leaves the obligation of confessing the sin it remits,
still this love will not serve by itself as a preparation and dis-
position for the reception of Penance. A material part of the
sacrament of Penance is contrition, and contrition is not love.
The sinner, then, who wishes to receive the sacrament of
Penance must have true and sincere sorrow for his sin; he
must detest it and turn away from it in order to be reconciled
with God, whom it offends. Mere natural sorrow for sin
because of the temporal evils which it causes is not sufficient.
I may well be sorry because sin has ruined my good name, or
my health, or my fortunes, but such motives are merely natural,
and have no relation to God. The sinner in the sacrament of
Penance seeks reconciliation with God, and so the motives of
his sorrow must have reference to God; they must be super-
natural, founded on revelation and on faith. Without faith
no act can be of avail for salvation, as " without faith it is
impossible to please God." 1 The sinner must regard sin as
the greatest of all evils, as in reality it is. He must be prepared
to do and to suffer anything rather than commit sin again.
Otherwise he cannot be said to fulfil that greatest of all the
commandments, which bids us love God with our whole heart,
with our whole soul, with all our strength, and with all our mind.
Inasmuch as any one mortal sin deprives us of the friendship
1 Heb. xi 6.
134 THE SACRAMENT OF PENANCE
of God, the sorrow of the sinner must also be universal and
embrace all the sins by which he has grievously offended
Almighty God. For this it is not necessary that there should
be a separate and distinct act of sorrow for every sin com-
mitted ; it will be sufficient if the motive be universal, so as to
embrace all sins. Thus, inasmuch as all mortal sins are directly
opposed to charity, and any such sin deserves the punishment
of hell, if our sorrow is motived by love toward God, or by
fear of hell, it will be universal in the sense required.
Provided that there be sorrow for all mortal sins confessed,
a want of sorrow for venial sins will not invalidate the sacra-
ment. For venial sins are compatible with the state of grace
and the friendship of God. Still there must be some sorrow
for sin confessed ; otherwise an essential part of the sacrament
of Penance will be wanting. And so if the penitent have only
venial sins to confess, for none of which he is sorry, the sacra-
ment would be invalid and sacrilegious. He must at least be
sorry for one sin confessed, and he should not confess venial
sins for which he is not sorry unless he has some good reason,
as if he wishes to ask the advice of his confessor about them,
or to make the state of his soul more fully known to him.
4. As contrition, according to the common view, forms a
part of the sacramental sign in Penance, it should in some
manner be expressed outwardly, not indeed that any form of
words is necessary, but the sorrow of the penitent should appear
from his confession, from his demeanour, or from his words
or other signs. It must exist, if not before, at least when
absolution is given, for sin cannot be forgiven if there be no
sorrow for it. Moreover, as the different parts of the sacra-
ment go to make one moral whole, the penitent's act of sorrow
should in some way be referred to the sacrament. For this,
however, it will be sufficient if together with the act of sorrow
there be the intention to confess the sin. In case, then, a
penitent has inadvertently omitted a serious sin from his con-
fession, but remembers it immediately after he has received
absolution and mentions it to the confessor, the latter may
absolve him at once, nor is it necessary for the penitent to
make a fresh act of sorrow for that particular sin.
On account of the necessity of a moral union between the
several parts of the sacrament, there must not be too long an
interval between the act of sorrow for sin and the reception of
absolution for it. Ordinarily, of course, the sorrow is virtually
renewed and expressed when the sin is confessed, but if this
were not the case, and the act of sorrow preceded the confession
CONTRITION 135
by more than one or two days, it would be doubtful whether
there was the necessary union between the parts of the sacra-
ment so as to constitute one sacramental sign.
5. There have been heated controversies in the past as to
the sufficiency of attrition to remit sin with the sacrament of
Penance. Although they are not quite settled even yet, never-
theless, since the Council of Trent the common doctrine is
fairly clear and certain. The Council, then, seems to teach 1
that sorrow for sin because of the fear of hell, or its moral
turpitude, or on account of the punishment with which God
afflicts the sinner even in this life, will be sufficient for the
remission of sin in the sacrament of Penance, provided that it
destroys all affection for sin in the heart of the penitent and
converts him from sin to God. The slavish fear of hell, by
which a man refrains from sinful acts while preserving his
affection for them, is, of course, insufficient even with the help
of the sacrament to forgive sin and reconcile the sinner with
God. The fear which is salutary and efficacious must be the
filial fear by which the sinner turns to God because he neither
wants sin nor its evil consequences any more. Such sorrow has
all the elements which, as we saw above, are required in contrition.
6. There is a controversy among theologians as to whether
the sacrament of Penance can ever be valid without producing
its effects in the soul at the time of its reception on account
of some obstacle which is there. We saw above that this may
be the case with Baptism and other sacraments. There is
a special difficulty with regard to Penance, because the dis-
positions, whose absence is only an obstacle to grace given
by other sacraments, enter into the substance of Penance, and
so their absence would seem to destroy the sacrament itself.
In spite of this, however, it is a probable opinion that at any
rate in two cases the sacrament of Penance may be valid but
unformed, as theologians say. The first case is when a penitent
has forgotten some mortal sin for which he has never elicited
an act of sorrow, but confesses other sins for which he is sorry
for motives which are special to them and not universal. The
second is when, through inculpable ignorance, the penitent
thinks that it is not necessary to be sorry for all mortal sins
confessed, provided there be the requisite sorrow for some.
In these cases there will be all the elements necessary for the
validity of the sacrament, which, however, cannot infuse grace
into the soul on account of the presence there of grievous sin
still unrepented of.
1 Sess. xiv, c 4.
J36 THE SACRAMENT OF PENANCE
7. When Penance is received in danger of death with attrition
and not contrition, some theologians insist on the necessity of
the dying person making an act of perfect love of God, either
to make sure before death of the validity of the sacrament of
Penance or to satisfy the divine precept, which, according to
them, requires all who are in danger of death to make an act
of charity. However, when the dying person has made a good
confession and been absolved even with attrition, he is certainly
in the state of grace, nor is there any valid argument which
proves that such a person is obliged to make an act of charity.
Neither the dying nor those who assist them are as a rule
conscious of any such obligation.
Because the Council of Trent, while describing the process
of the sinner's justification, mentions acts of faith, hope, and
the beginnings of love toward God, some theologians con-
cluded that explicit acts of those virtues are required for Penance
in addition to contrition. Those acts, however, are implicitly
contained in the other acts of the penitent, and the fact that the
Council explicitly mentions them does not prove that it teaches
that they must be explicitly elicited by the penitent sinner in
order to receive absolution for his sins.
SECTION II
The Purpose of Amendment
1 . We saw in the preceding section that contrition is essen-
tially a turning away with hatred from sin in order to approach
to God, and so all true contrition necessarily implies a purpose
not to sin again. If the truly contrite sinner thinks of the
future, he can scarcely fail to form an explicit purpose of
amendment, and some theologians hold that this explicit
purpose is necessary, otherwise why should it find a place in
the definition of contrition given by the Council of Trent ?
On account of its importance, it is well that the purpose of
amendment should always be explicit, but still as it is virtually
contained in all true sorrow for sin, and the fact that the Council
explicitly mentions it does not prove that it must necessarily
be explicit, the opinion which denies the absolute necessity of
an explicit purpose of amendment for the validity of Penance is
safe. A Roman council held in 1725 under Benedict XIII
issued an instruction explaining how to make one's confession,
and it only insists on an implicit purpose of amendment.
2. Whether it be explicit or implicit, the purpose of amend-
ment must be sincere, efficacious, and universal.
CONTRITION 13?
It must be sincere, with a genuine intention to avoid sin in
the future ; it will not suffice to make profession of good inten-
tions with the lips, without any real determination to carry
them into effect.
It must be efficacious, or the sinner must be prepared to
take the necessary means to avoid sin. A mere half wish and
half resolve will not do. The sinner must be prepared to do
and suffer anything rather than fall into sin again. It would,
indeed, be unwise to try one's own determination by imagining
all kinds of terrible temptations to sin to see if the will would
remain constant, but at any rate the will must here and now
be so rooted in good that, come what may, it is determined
not to be moved.
There must also be a firm resolve to avoid all mortal sins for
the future, not merely any that may have been confessed,
but all others, or else there can be no 1 friendship with God,
whom we must love above all things. He cannot love God
above all things who is prepared to offend him mortally. The
purpose of amendment need not extend to all venial sins,
provided that at least there is the sincere intention of avoiding
some sin that is confessed, or at any rate of lessening the number
of smaller transgressions.
CHAPTER IV
CONFESSION
i. CONFESSION, or the self-accusation of a penitent made to
a priest with a view of obtaining sacramental absolution, is
the second material element of Penance. Such confession is
necessary because it is an essential element of the sacrament
of Penance, which, as we have seen, is a necessary means of
salvation for all who have fallen into grave sin after Baptism.
The Council of Trent teaches that " From the institution of
the sacrament of Penance, as already explained, the universal
Church has always understood that the entire confession of
sins was also instituted by the Lord, and is of divine law neces-
sary for all who have fallen after Baptism." 1
2. This confession must be made by word of mouth accord-
ing to the practice of the Church and the teaching of the Council
of Florence. 2 However, oral confession is not absolutely
necessary for the validity of the sacrament, for mutes or peni-
tents who know no language known also to the confessor, or
those who are dying and are unable to speak, may confess by
signs. Moreover, for good reason, anyone may write his
confession, hand it to the priest to read, and accuse himself
in general terms, such as " I confess all that is written there."
Although mutes and other penitents may thus confess in
writing, yet there is no obligation to do so, for sacramental
confession should be secret and auricular, whereas writing
makes it to some extent public, litera scripta manet.
Clement VIII, by a decree dated June 20, 1602, condemned
the opinion that it is lawful to confess by letter to an absent
priest or to receive absolution in the same way from an absent
priest, and forbade the opinion ever to be put in practice;
whence theologians conclude that such confession or absolution
would be invalid by divine law, else the Pope could not have
condemned it in such absolute terms. It seems to follow that
confession by telephone would also be invalid, for confession
would be made by one who is absent, not present with the
priest at the time of receiving this sacrament, as is required by
the conditions of its valid administration.
1 Sess. xiv, c. 5. 2 Decretum pro Armenis.
138
CONFESSION 139
3. A full, entire, and specific confession of all the mortal
sins which have been committed after Baptism is prescribed
by divine law. According to the Council of Trent, 1 " If any-
one saith that in the sacrament of Penance it is not necessary
by divine law for the remission of sins to confess all and singular
the mortal sins which after due and diligent previous meditation
are remembered, even those mortal sins which are secret, and
those which are opposed to the two last commandments of the
Decalogue, as also the circumstances which change the species
of a sin ... let him be anathema."
Theologians distinguish between the material and the formal
integrity of confession. The material integrity consists in
making known each and all the mortal sins which have been
committed and which have not yet been confessed; the formal
integrity consists in confessing all the mortal sins which occur
to the mind after a diligent examination of conscience, or at
least of all the sins which the penitent is bound under the
circumstances to confess to the priest. It is formal integrity
which is prescribed by divine law, and to procure it the penitent
is bound before confession to make a diligent examination of
his conscience. He should not be too anxious in making this
examination; it will be sufficient if he employ that diligence
which prudent men employ in worldly matters of importance.
No general rule can be given to measure the length of time
which the examination should occupy. Much depends upon
the character of the individual, the length of time which has
elapsed since the last confession, whether the penitent is
accustomed to commit grave sins or not, and on similar circum-
stances. If the penitent cannot recollect the number of times
that he has fallen into serious sin, he should mention the
number as nearly as he can, and if he has fallen very frequently
and almost continuously over a long period of time, it will be
sufficient to mention the approximate number of times that
he has fallen in the day or week, together with the length of
time during which the habit has lasted.
4. A number of special questions must here be considered
which touch on the integrity which is required in confession.
The Council of Trent, as we have just seen, teaches that
those circumstances which change the nature of a sin must be
made known; the theft of a consecrated chalice, which is a
sacrilege, would not be adequately confessed by simply saying,
" I committed theft." Not only circumstances which change
the specific nature of a sin must be confessed, but also those
1 Sess. xiv, c. 7.
140 THE SACRAMENT OF PENANCE
which make a venial sin mortal and vice versa. The quantity
in theft, then, must be indicated sufficiently to enable the priest
to judge whether it was a mortal or a venial sin. Divines are
not agreed whether circumstances which merely increase the
malice of a sin but do not otherwise change its nature or moral
quality are necessarily to be confessed. Many, with the
Catechism of the Council of Trent, teach that there is an
obligation to confess them, but as they give no convincing
reason for their opinion and the contrary is held by many
approved theologians, we may safely follow the more easy and
the more lenient view.
It is not sufficient to confess as an internal sin one which
was completed in external act. It would not be sufficient for
a penitent to say that he desired to steal when he actually stole.
For although the malice of sin is in the internal act of the will,
and the external act adds nothing to it per se, yet, considered
as human actions, an internal is different from an external act,
and therefore as sins are bad human actions, an internal
sin is specifically different from the same sin completed in
external act.
It is a matter of controversy whether the mere effect of a sin
must be confessed. If a man wounds another with the inten-
tion of killing him, and then repents and confesses unlawful
wounding with the intention of killing, but afterward the man
dies, will his assailant be obliged to go to confession again and
confess homicide ? The opinion is more probable that there
is no such obligation, for such an effect of sin is not a sin, and
we are only bound to confess sins; a sin is a human action,
and when the victim dies his assailant does not act; he would
now prevent the death if he could, and so he does not sin.
A vicious habit or custom of committing sin is a cause of sin
rather than sin itself, and as sins are the matter of confession,
per se it is not necessary to confess a sinful habit. If, however,
the penitent did not use sufficient diligence to correct his bad
habit, and this caused him inadvertently to commit sin, to
blaspheme, for instance, then although the blasphemy, because
inadvertent, is not sinful in itself, it is nevertheless voluntary
and sinful in its cause, and so the uncorrected bad habit must
be confessed. It is sometimes of importance for the confessor
to know whether his penitent has contracted a habit of sin in
order to be able to direct him, and so the confessor has a right
to ask in confession whether a habit has been contracted, and
the penitent is then under an obligation to tell the truth.
If many sins have been committed with others it is usually
CONFESSION 141
immaterial whether they were committed with one and the
same or with different persons. However, if a sin against
chastity is committed with a married person, that circumstance
must be mentioned, as it causes the sin to be against justice as
well as against chastity. Similarly, if one or both accomplices
in such a sin are bound by a vow of chastity, that must be
mentioned. A religious who is a priest, and even if he is
solemnly professed, would satisfy his obligation of confessing
a sin against chastity by mentioning it, and adding that he is
under a vow of chastity. For it is probable that there is no
specific difference between the violation of a solemn and a
simple and even private vow of chastity, and a priest, like a
religious, is bound to chastity by vow.
Sins against chastity committed with relations have the
special malice of incest, but with the exception of the first
degree in the direct line of consanguinity, it is probable that the
several degrees of kindred or affinity do not constitute a specific
difference in the sin. There is a special malice and difformity
in a sin of impurity committed with parent or child, but among
civilized peoples this is happily of rare occurrence. Hatred
against relations is not only against general charity, but is also
contrary to piety, which binds relations to love each other
with a special affection. Grave hatred will be a serious sin
also against this virtue of piety if it is indulged in against near
relations, not if it is against more remote kindred with regard
to whom the obligation is not so strict.
Mere superiority or position of itself does not change the
nature of a sin committed by rulers, magistrates, and people
in authority. And so if a master sin with his servant, the sin
does not of itself differ from ordinary fornication. If, however,
the sin is also a violation of a special duty, then of course it will
have a special malice, and so if a schoolmaster corrupt a youth
committed to his care, he must mention this circumstance in
confession.
The time at which a sin was committed does not change its
nature, and so even though a sin which has been committed
recently be confessed as though it were a sin of one's past life,
the confession will be valid, but of course the practice is not
to be commended, nor should it be indulged in.
5. Integrity of confession is prescribed by divine law, but
as even divine law does not bind to what is impossible, physical
or moral impossibility of making a full confession will excuse
the penitent from obeying the law. And so danger of death
when the dying person has not the strength or time for making
142 THE SACRAMENT OF PENANCE
a full confession, or ignorance of any language known to the
priest, or danger of violation of the seal of confession, or danger
to life from pestilence or other cause, will excuse the
penitent from making a full confession of all his sins. Inno-
cent XI condemned the proposition that a large concourse of
penitents on some great feast is a sufficient reason for absolving
them without requiring a full confession. When a penitent
has been absolved without making a full confession on account
of the physical or moral impossibility of doing so, there always
remains the obligation of supplying the defect in the next
confession, unless the impossibility continues. A proposition
asserting the contrary was condemned by Alexander VII.
Moreover, that a penitent may lawfully ask for absolution
without making a full confession, the following conditions must
be verified :
(a) There must be some sort of necessity for making the
confession here and now, as, for instance, the obligation of
receiving the sacraments at Easter, or the hardship of remaining
long without the sacraments or in a state of mortal sin.
(b) There must be no other confessor at hand to whom a full
confession could be made without grave inconvenience.
(c) All sins must be confessed which can be mentioned
without grave inconvenience, extrinsic to confession, which
affects the penitent, the confessor, or some third person. The
reason of this is because it cannot be supposed that Christ our
Lord intended to bind penitents to make a full confession when
it would entail such a hardship, whereas we know that he did
command a full confession in spite of shame or other difficulties
which are the natural accompaniments of confession of sin to
a fellow-man.
6. By a general confession is meant a repetition of preceding
confessions. Sometimes this is necessary, sometimes it is
useful; otherwise it is harmful, likely to beget scruples, and
lead the penitent to think about the past when he should be
thinking about the present and the future, and so it should not
be permitted.
A general confession is necessary when, through want of
jurisdiction on the part of the confessor, or of a full confession
or of sorrow for sin on the part of the penitent, former con-
fessions were certainly invalid. In these cases all the invalid
confessions must be repeated at least as far as the necessary
matter is concerned.
A general confession at certain times extending over a certain
period is frequently prescribed to religious by rule, which,
CONFESSION 143
of course, should be dutifully observed. Moreover, it is useful
for most people to make a general confession sometimes,
especially when about to enter upon a new state of life, or
when, while making a spiritual retreat and meditating upon
sin, the grace of God moves the soul to greater sorrow for the
past than one ordinarily feels. Sometimes a general confession
may be allowed to allay doubts and scruples of conscience with
regard to past sins.
Unless some notable spiritual fruit is to be hoped for, a
general confession should in other cases besides the above be
regarded as harmful, and should not be allowed.
CHAPTER V
SATISFACTION
i. IT is part of the law of eternal justice that when we sin
by following our own will instead of the will of God we must
be brought back again into the right way by suffering what we
would not. And so sin brings with it its penalty; when we
have sinned we must suffer for it either in this world or the
next. It is in keeping with this principle that by the institution
of Christ one of the elements of the sacrament of Penance by
which sin is forgiven is satisfaction. By satisfaction is under-
stood some action which entails labour and pain, imposed by
the priest in confession on the repentant sinner and accepted
by him. We have already seen that the Council of Trent
teaches that satisfaction is an element in the material part of
Penance, and the same council in another place 1 adds: " There-
fore the priests of the Lord ought, as far as the Spirit and
prudence shall suggest, to enjoin salutary and suitable satis-
factions according to the quality of the crimes and the ability
of the penitent."
Confessors, then, are under the obligation of giving a penance
to their penitents in satisfaction for the sins which they confess.
As a general rule, they must give a grave penance for grave
sins, otherwise they will sin grievously; but probably only a
venial sin would be committed by neglecting to give a suitable
penance for light faults.
In the early Church the penances enjoined were very severe,
but, according to modern discipline, that is considered a grave
penance and suitable for a penitent who has confessed grave
sins which would bind under a grave obligation if it were
imposed by ecclesiastical law. The Church encourages her
children to make up by gaining indulgences for what the justice
of God may require in addition to the comparatively light
penances which are imposed nowadays.
The natural sequence of judicial acts in the tribunal of
Penance requires that a penance should be enjoined by the
priest before giving absolution, but it will be valid if imposed
after absolution.
1 Sess. xiv, c. 8.
144
SATISFACTION 145
The Ritual expresses a wish that, as far as possible, penances
should be given which are contrary to the sins confessed, as
almsgiving for avarice, fasting or other bodily affliction for
lust, humiliations for pride, acts of devotion for sloth. For
such as but seldom confess more frequent reception of the
sacraments may be enjoined. The confessor should never
apply to personal objects alms imposed on his penitents, nor
enjoin public penance for secret sins.
2. The penitent is bound to accept and to execute a reason-
able penance which his confessor has imposed on him. This
obligation will be grave when a grave penance has been imposed
for serious sins, otherwise it will bind under pain of venial sin.
As the penitent is bound to accept the penance, so he is obliged
to execute it at the time prescribed, if any time was fixed, or
if not, then at a reasonable time. To defer its execution so
long as to be in danger of forgetting it would be equivalent to
not fulfilling it. It is best to execute the penance as soon as
can conveniently be done.
If the penitent forgets the penance which was enjoined, he
is excused from fulfilling any penance, as he is not bound to
confess the same sins a second time, and he cannot substitute
some other of his own choice, as he is not the minister of the
sacrament.
3. In order to be sure of obtaining the. sacramental effect of
fulfilling the penance enjoined by the confessor, the penitent
must be in the state of grace when he fulfils it, for God does
not remit temporal punishment due to past sins in favour of
one who is at enmity with him. However, by fulfilling the
penance even in the state of mortal sin, what had been enjoined
would have been executed, though it would not then effect
its object of remitting temporal punishment due to sin con-
fessed. It is a disputed point among theologians whether
fulfilment of penance while in a state of sin would produce
its effect when the sinner repented and again recovered the
state of grace. Many theologians hold that it does so, and
that it revives in the same way as a sacrament revives which
has been validly received, but which does not produce grace
at the time of its reception on account of the presence of some
obstacle in the soul.
Although it is better and safer to execute the penance while
in the state of grace, and if it is executed in a state of mortal
sin it does not at any rate at once obtain its effect, yet it is not
certain that any fault is committed by doing one's penance
while in sin, any more than it is sinful to assist at Mass while
. 10
146 THE SACRAMENT OF PENANCE
out of the friendship of God. One who in sin hears Mass on
Sunday satisfies the precept, though he does not obtain the
full fruit of the sacrifice ; in the same way one, who while in sin
says his penance, fulfils indeed his obligation, but does not
thereby obtain at the time the sacramental fruit of his action.
4. Although a penitent may not of his own authority sub-
stitute another penance for that which was imposed by his
confessor, yet he may for good reason get this commuted either
by the same or by a different confessor. The same confessor
may commute the penance which he himself imposed either
in or out of confession, provided that so long an interval
has not elapsed that the commutation cannot be considered
one moral act with the confession and the imposition of the
penance which is commuted. If the penitent goes to another
confessor and asks for a commutation of a penance which has
been enjoined him, the commutation must be granted in con-
fession, otherwise the new confessor will have no jurisdiction
over the penitent. The former confession need not be repeated ;
it is probable that it will be sufficient if the new confessor knows
the penance which was given and for which a commutation is
asked, together with the difficulty which the penitent feels in
executing it.
CHAPTER VI
THE FORM OF PENANCE
i. WE must distinguish the form which is required for the
validity of the sacrament from the form which is commonly
used according to the Ritual. " I absolve thee from thy sins "
is sufficient for the validity of the sacrament, and probably
even the mere words " I absolve thee." The Ritual form
consists of the four short prayers beginning with Misereatur,
etc., of which the third is the most important, as it contains
the absolution from censures and from sin. The absolution
from censures is always given before the absolution from sin
for the sake of greater security, because if the penitent were
under censure, he could not lawfully receive a sacrament. A
rubric of the Ritual expressly lays down that the other three
prayers may be omitted in shorter and more frequent con-
fessions, but it is better always to add the last prayer, as it
probably gives a special satisfactory efficacy to the good works
which the penitent subsequently performs.
We saw above that absolution cannot be given validly by
a priest to a penitent who is not morally present at the time.
This sacrament is a judicial process, and the priest, who is the
judge, pronounces sentence on the culprit who is present in
court. The absolution must be pronounced by word of mouth,
and the penitent must be within hearing distance, not farther
distant than the ordinary tone of voice carries.
2. The priest cannot pass sentence without having a sufficient
knowledge of the sins to be absolved and the dispositions of the
penitent. It is not necessary, however, nor is it possible to
have a distinct knowledge of the subjective malice with which
the sins of the penitent were committed. The confessor may
presume that the subjective malice of the penitent corre-
sponds with the objective malice of the sin, unless he has special
reasons for concluding otherwise.. With his habitual know-
ledge of the malice of different sins the confessor passes a
sufficient judgement on them if he quietly listens to the self-
accusation of the penitent.
A merely historical account of the sins which a person has
committed may suffice for absolution if the penitent resumes
147
148 THE SACRAMENT OF PENANCE
them under some brief formula by which he expresses his
desire to confess them and receive absolution for them. The
priest must in this case, of course, retain at least a general and
vague knowledge of the sins which he absolves.
3. A dying person, who through weakness or other causes
is unable to make a full confession, may be absolved absolutely
if he mentions what sins he can, or even if he asks for the
absolution of his sins, for such a confession is formally integral.
The Ritual prescribes that a dying person who has lost the
use of his senses is to be absolved even if he previously only
expressed a desire himself or through others to receive absolu-
tion. In this case, also, it would seem that the absolution
should be absolute.
Dying persons who have lost the use of their senses may
be absolved conditionally even if they give no certain signs
of a desire to confess or of sorrow for their sins. It may be
that in such a state the dying person has the requisite dis-
positions, and is trying his best to give expression to them,
and so the movements of the body or his laboured breathing
may be indications of a wish to receive absolution. At any
rate, in such a case of necessity we may use even a slenderly
probable opinion, and it is now the common practice to absolve
conditionally in such cases.
CHAPTER VII
THE MINISTER OF PENANCE
CHRIST our Lord gave his Apostles and their successors a
twofold spiritual power to enable them to do the work which
he commissioned them to do for the sanctification and salvation
of souls. This twofold spiritual power is the power of Orders
and the power of Jurisdiction.
The power of Orders has reference to the holy Eucharist,
and it was conferred on the Apostles at the Last Supper when,
after consecrating the blessed Eucharist, bur Lord said to them :
" Do this for a commemoration of me." The power of Orders
has reference not only to the blessed Eucharist but to every-
thing that is required to prepare and dispose men for the
worthy and fruitful reception of it. And so, by the disposition
of Christ our Lord the power of Orders is necessary for the
forgiveness of sins. In other words, only priests can be
ministers of the sacrament of Penance (Can. 871).
The power of jurisdiction is the power of ruling subjects,
and it was given to the Apostles by Christ our Lord when he
said to them: " Amen, I say to you, whatsoever you shall bind
upon earth shall be bound also in heaven, and whatsoever you
shall loose upon earth shall be loosed also in heaven. Both
powers are implied in the institution of the sacrament of Penance
when our Lord said to his Apostles: " As the Father hath sent
me I also send you. Receive ye the Holy Ghost, whose sins
you shall forgive they are forgiven them, and whose sins you
shall retain they are retained."
The power of Orders is conferred by the sacrament of Orders.
We will treat of the power of jurisdiction in a separate chapter.
149
CHAPTER VIII
THE JURISDICTION OF THE MINISTER OF PENANCE
i. PRIESTS are judges in the tribunal of Penance, and judges
must have jurisdiction if their sentence is to take effect. As
the Council of Trent teaches: "Wherefore, since the nature
and order of a judgement require this, that sentence be passed
only on those subject to that judicature, it has ever been firmly
held in the Church of God, and this synod ratifies it as a thing
most true, that the absolution which a priest pronounces upon
one over whom he has not either an ordinary or a delegated
jurisdiction ought to be of no weight whatever." 1
Jurisdiction in general is the power of ruling subjects. We
must distinguish jurisdiction in the internal forum from juris-
diction in the external forum. The latter has reference
primarily and directly to the common good, to promote which
it makes laws, administers justice, and directs the machinery
of government. Jurisdiction in the internal forum refers
directly and primarily to the good of the individual soul, whose
actions it directs toward God. It is exercised either in the
sacrament of Penance, when sins are forgiven, or outside the
sacred tribunal, as when a dispensation is granted from
ecclesiastical law. Again, jurisdiction is either ordinary or
delegated.
Ordinary jurisdiction is that which is annexed to an office
by law; delegated jurisdiction is committed to a person.
The Pope and Cardinals have ordinary jurisdiction for
hearing confessions throughout the whole Church.
Local Ordinaries and parish priests and those who are in the
place of parish priests have ordinary jurisdiction for hearing
confessions in their respective territories, as also has the Canon
Penitentiary. The superiors of exempt religious have ordinary
jurisdiction for their own subjects (Can. 873).
One who has ordinary jurisdiction for hearing confessions
can absolve-his subjects wherever he finds them.
Ordinary jurisdiction ceases by loss of office, and, after a
declaratory or condemnatory sentence, by excommunication,
suspension from office, and interdict.
1 Sess. xiv, c. 7.
150
JURISDICTION OF THE MINISTER OF PENANCE 151
The Ordinary of the place in which the confessions are
heard grants delegated jurisdiction to hear the confessions of
all penitents, whether secular or religious, to all priests, both
secular and religious, even though they be exempt; but religious
priests may not use the same without at least the presumed
leave of their superior (Can. 874).
Local Ordinaries should not habitually grant faculties for
hearing confessions to religious who are not presented by
their own superior, nor without grave reason deny faculties to
those whom he does present.
Local Ordinaries should only grant faculties for hearing
confessions to such as have been proved fit for the office by
sxamination, unless there is question of a priest whose theo-
logical knowledge they know from other sources (Can. 887).
Delegated jurisdiction can be granted; with certain limitations
as to time, place, persons, and cases.
Jurisdiction must be granted in writing or expressly by
word, and without charge.
Parish priests, vicars of parish priests, and other priests with
general delegation cannot delegate jurisdiction for hearing
confessions without the faculty or mandate of the Ordinary
of the place (Com. on Canon Law, October 16, 1919).
By Canon 88 1 all priests, whether secular or regular, approved
for hearing confessions in any place, whether they have ordinary
or delegated jurisdiction, can absolve validly and lawfully
homeless persons and strangers who come to them from another
diocese or parish, as also Catholics of any Oriental rite.
Without grave cause local Ordinaries may not revoke or
suspend jurisdiction for hearing confessions, nor without con-
sulting the Holy See can they lawfully take away faculties at one
time from all the confessors belonging to a formed house of
religious (Can. 880).
Delegated jurisdiction ceases when the mandate has been
executed, when the time has elapsed or the number of cases for
which it was given is exhausted, when the final cause of the
delegation ceases ; by the revocation of him who gave it directly
intimated to the delegate, by the renunciation of the delegate
directly intimated to him who gave it and accepted by him.
It does not cease when he who gave it loses his authority, unless
a clause was inserted to that effect, or jurisdiction was given
as a favour to special persons to hear a confession and nothing
has been done in the matter. If the case has been begun it
may be finished (Can. 207).
However, if by inadvertence absolution is given after the
THE SACRAMENT OF PENANCE
lapse of the time for which jurisdiction was granted, or after
the number of cases was exhausted, it is valid (Can. 207, sec. 2).
Even when a priest has not jurisdiction habitually, the Church
sometimes supplies it for the good of the penitent, so that the
absolution given may be valid.
In danger of death all priests, even though not approved for
hearing confessions, may validly and lawfully absolve any peni-
tents from any sins or censures, however reserved and notorious
they may be, and even though an approved priest be present,
but the special law about absolving an accomplice must be
observed (Can. 882).
In a case of common mistake when many of the faithful think
that a priest has faculties while he has not, the Church supplies
jurisdiction, but if a priest knowingly exposes himself to hear
confessions without faculties he sins grievously.
The Church supplies jurisdiction in a case of positive doubt
and probability as to whether a priest has it (Can. 209).
According to Canon 883 all priests while on a sea voyage,
provided that they have received faculties for hearing con-
fessions, either from their own Ordinary or from the Ordinary
of the port where they embarked, or from the Ordinary of any
intermediate port by which they pass on their journey, can,
during the whole voyage, hear the confessions in the ship of
any of the faithful on board with them, although the ship on
its voyage may pass by or even stay for some time in various
places subject to the jurisdiction of different Ordinaries.
Moreover, when the ship stops on the voyage they can hear
the confessions both of the faithful who for any reason come
on board, and of such as while they chance to be on land ask
them to hear their confessions, and validly and lawfully absolve
them even from cases which are reserved to the Ordinary of
the place.
The Holy See has made special regulations with regard to
the faculties of army chaplains (Can. 451, sec. 3).
CHAPTER IX
THE CONFESSORS OF RELIGIOUS
i. THE local Ordinary can give jurisdiction to hear the con-
fessions of the members of a clerical order of exempt religious,
as we have seen. Their religious superior, in accordance with
the Constitutions, can likewise grant jurisdiction for hearing
the confessions of the religious, of the novices, and of others
who by day and night live in a house of the religious as servants,
scholars, guests, or for the sake of their health. The religious
superior can grant jurisdiction for hearing the confessions of
all these to secular priests also, and to priests of other religious
institutes.
In an exempt institute of laymen the superior proposes a
confessor to the local Ordinary from whom he ought to obtain
jurisdiction (Can. 875).
In an institute of laymen who are not exempt the local
Ordinary designates a priest to hear confessions (Can. 529).
2. In each house of clerical religious it is prescribed that
several lawfully approved confessors be appointed according
to the number of the inmates, with power to absolve from
cases reserved in the order in the case of exempt religious
(Can. 518, sec. i).
In institutes of laymen it is prescribed that an ordinary and
an extraordinary confessor be appointed; and if a religious
ask for a special confessor the superior should grant the request
without in any way inquiring into the reason for the request,
or showing displeasure at it (Can. 528).
To hear the confessions of novices in orders of men it is
prescribed that one or more ordinary confessors be appointed
according to the number of novices. In the case of clerical
orders, these ordinary confessors should live in the novitiate;
in the case of orders of laymen, they should at least frequently
come to the novitiate to hear the confessions of the novices.
Besides the ordinary confessors some other confessors should
also be appointed, and free access to them should be allowed
the novices.
Moreover, at least four times in the year an extraordinary
confessor should be allowed the novices, and all of them should
153
154 THE SACRAMENT OF PENANCE
present themselves to him at least to ask for his blessing
(Can. 566).
Finally, while the Constitutions which prescribe or advise
confession at fixed times to appointed confessors should be
observed, if a religious even, though exempt for his peace of
conscience, go to a confessor approved by the local Ordinary,
even though he is not one of those designated for religious,
the confession is lawful and valid, and any privilege to the
contrary is revoked ; and such confessor can absolve the religious
even from sins and censures reserved in the order (Can. 519).
3. To hear the confessions of religious women in their
convents lawfully and validly, both secular and religious priests
of any degree or office, except Cardinals, require a special
jurisdiction which the Ordinary of the place grants where the
convent is situated, and any special law or privilege to the
contrary is revoked (Can. 876).
To hear the confessions of such religious women one ordinary
confessor only is to be appointed for each convent, unless the
great number of the religious or some other cause require
more (Can. 520).
The ordinary confessor is appointed for three years, but
under certain conditions his office may be prolonged for a
second or even for a third period of three years (Can. 526).
An extraordinary confessor for each community of religious
women should be granted at least four times in the year, and
all the religious and novices should present themselves to him
at least to ask for his blessing (Can. 521).
The local Ordinary should appoint some special confessors
for every house where a religious community lives to whom
any nun may easily have recourse in particular cases, and if
any religious asks for such a confessor no superioress in any way
may inquire into the reason for the request, refuse it, or show
displeasure at it (Can. 521).
4. Besides these confessors a religious sister, for the quiet
of her conscience and for greater progress in the way of God,
may ask for some special confessor or spiritual director, and
the Ordinary should readily grant the request, while taking
care that abuse does not creep in (Can. 520).
A religious sister may also go cc any confessor approved for
women by the local Ordinary in any church or oratory, even
semi-public, or in a place lawfully set apart for hearing the
confessions of women, without being obliged to refer to her
superioress; indeed, the superioress is not allowed to forbid
her going, or to inquire about it even indirectly (Can. 522).
THE CONFESSORS OF RELIGIOUS 155
A religious sister who is seriously ill, though not in danger
of death, may call any priest approved for hearing the con-
fessions of women though not designated for religious, and
confess to him as often as she wishes during her serious illness,
nor can the superioress forbid it, directly or indirectly (Can.
533). . . .
Any priest can absolve anyone in danger of death.
The confessors of religious women should be conspicuous
for probity and prudence, forty years of age, unless in the
judgement of the Ordinary a good reason otherwise require,
and they have no power over the religious in the external
forum.
CHAPTER X
RESERVED CASES
i. THE Council of Trent says: 1 " It hath seemed to our most
holy Fathers to be of great importance to the discipline of
the Christian people that certain more atrocious and more
heinous crimes should be absolved not by all priests, but only
by the highest priests." And so the absolution of certain
graver sins and censures, or cases as they are called, is reserved
to higher ecclesiastics. Ordinary confessors retain their juris-
diction for other sins, but it is limited, so that they have no
authority over reserved cases. The motive for thus reserving
sins is the spiritual good of the faithful, so that they may
be deterred from committing those sins on account of the
difficulty of obtaining absolution for them, and if unfortunately
they should fall into them, they may have more skilful guides
than ordinary confessors are presumed to be.
2. Reservation is the limitation of jurisdiction, and so in
general all those who have ordinary jurisdiction, when they
delegate it to others, may reserve some cases for treatment in
their own tribunal.
In particular the Pope reserves certain censures and sins
of all the faithful throughout the world. In nearly all papal
cases both the censure and the sin are reserved, but the sin
is reserved on account of the censure, so that if, through any
cause, the censure is not incurred, then the sin is not reserved.
False accusation of solicitation made against a confessor is an
exception, and is reserved to the Holy See on its own account
(Can. 894).
The Code of Canon Law divides the censures reserved by
the Holy See into four classes. Some are reserved in a most
special manner to the Holy See itself, others in a special manner
to the Holy See, others are simply reserved to the Holy See,
others, again, are reserved by the Holy See to the Ordinary. A
fifth class of papal censures are reserved to none, and may be ab-
solved on proper conditions by any priest with ordinary faculties.
Local Ordinaries should not reserve sins except after dis-
cussion in Synod or the necessity or usefulness of reservation
1 Sess. xiv, c. 7.
156
RESERVED CASES 157
has been approved out of Synod by the Chapter and some
prudent priests who have the cure of souls. Bishops' cases
should be few, only three or four, the more atrocious crimes,
and not papal cases. The reservation should be withdrawn
when it has obtained its effect (Can. 895-898).
In England the First and Fourth Synod of Westminster
reserved to the bishop the case of a priest going to the theatre
and thereby incurring suspension. In the United States two
cases are reserved by provincial law: (a) The excommunication
incurred by those who attempt to marry again after getting
a civil divorce; (b) the excommunication incurred by those
who marry before any non- Catholic minister.
Besides these cases reserved by law the bishops reserve a
few cases to themselves for which the pagella of faculties must
be consulted. When the bishops reserve a sin with a censure
attached to it, it was a disputed point 'whether the reservation
of the censure is the primary object in view, as in papal cases,
or whether the reservation of the sin and of the censure are
of equal importance and independent of each other. This
question is now settled by Canon 2246, sec. 3, which decides
that when a censure has been absolved or is not incurred the
reservation of the sin ceases.
The superiors of religious orders may also reserve cases of
their subjects. Clement VIII issued a list of eleven cases
which they might reserve, arid forbade them to reserve others
except with the consent of a general or provincial chapter of
the order (Can. 896).
3. Certain conditions are required in order that any par-
ticular sin may be reserved. First of all it must be a grave
sin such as forms the necessary matter of confession, for a
venial sin which the penitent need not confess cannot be
effectually reserved. It is not the practice of the Church to
reserve merely internal sins; there must be an external act
and as such gravely sinful. So that a slightly indecent word,
even if uttered with a seriously bad intention, would not fall
under reservation if all sins of indecency were reserved. The
sin must be completed and perfect in its kind, not merely
attempted, for reservation is to be strictly interpreted. For
the same reason it must be certain that the sin is reserved, so
that any prudent doubt of law or of fact whether a particular
sin is reserved is sufficient to enable the confessor to give
absolution without special faculties.
4. Those who are under the age of puberty do not incur
papal cases unless they are expressly included in the law. The
158 THE SACRAMENT OF PENANCE
only papal cases in which they are so included is the violation
of the enclosure of nuns. The same rule may be applied to
bishops' cases, unless a bishop has made known his intention
to bind even those who have not reached the age of puberty.
Ignorance of a censure, unless it be crass or supine, excuses
from the censure, as is expressly laid down in the Decretals. 1
As in papal cases the reservation of the sin is on account of the
censure annexed to it, and ignorance excuses from incurring
this, therefore ignorance will excuse one from incurring papal
reserved cases to which a censure is attached. The reservation
of false accusation of solicitation is very probably penal, as
theologians gather from the words by Benedict XIV in the
Constitution Sacramentum Poenitentiae, and as ignorance of
a penalty excuses one from incurring it, therefore ignorance
will excuse one from incurring this reserved case. This
opinion, however, which many hold to be still probable, is
hardly of practical importance, for the ecclesiastical judge
who receives the false accusation will certainly warn the culprit
of the penalty incurred by false accusation.
It is a disputed point whether ignorance excuses from in-
curring bishops' cases or not. It excuses, indeed, from incur-
ring any censure inflicted by any ecclesiastical superior, but
it certainly does not excuse from incurring a reserved sin if
the bishop has expressed his intention of reserving it even when
committed in ignorance of the reservation. Otherwise it is
probable that ignorance excuses in episcopal as well as in papal
cases, for reservation is partly penal, and it cannot attain its
end of deterring the faithful from committing reserved sins if
they are ignorant of the reservation.
According to Canon 900, all reservation ceases:
(1) When either the sick who cannot leave the house make
their confession, or those about to be married with a view to
marriage.
(2) Whenever either the lawful superior on being asked has
refused to grant faculties for absolving a particular case, or
in the prudent judgement of the confessor faculties for granting
absolution cannot be asked for from the lawful superior
without serious detriment to the penitent or without danger
of violating the seal of confession.
(3) When the penitent is outside the territory of him who
reserved the case, even though he left it only to obtain
absolution. But, according to the Commission for the In-
terpretation of Canon Law a stranger (peregrinus) incurs the
1 C. 2, de const, in 6to; can. 2229, sec. 3, i.
RESERVED CASES 159
reserved cases of the place where he is staying (A.A.S. xii,
575)-
5. In general absolution from reserved cases may be ob-
tained from the person who reserved them, from his successor,
his superior who has jurisdiction over the same subjects, and
from anyone who has been specially delegated by one of these
to grant absolution.
Canon 2237, sec. 2, gives Ordinaries power to absolve from
cases simply reserved to the Holy See when they are occult
either in person or by their delegate.
The Vicar General and the Canon Penitentiary can absolve
from cases reserved to the Ordinary (Can. 401).
Vicars forane have power to absolve from cases which the
bishop reserves to himself, and they should be able to delegate
the same power to other priests of their district (Can. 899,
sec. 2). '
By the same canon, sec. 3, parish priests are empowered to
absolve from cases which Ordinaries reserve to themselves
during the time allowed for making one's Easter duties, and
missionaries have the same power during missions.
When the penitent is in danger of death any priest can
absolve him from any sins or censures however they may be
reserved, but if a penitent in that condition has been absolved
from a censure ab homine or one most specially reserved to the
Holy See by a priest without special faculties, and he recovers,
he is bound under pain of falling again under censure to have
recourse to him who inflicted the censure if it was ab homine,
or to the Sacred Penitentiary or to the bishop or someone else
with special faculties and submitting to their commands
(Can. 2252).
Moreover, when it is necessary for a penitent to receive
absolution in order to avoid scandal or loss of reputation, or
because he must say Mass or make his Easter Communion,
or when he feels it a great hardship to remain in the state of
sin during the time required for obtaining special faculties to
absolve him, a simple confessor may absolve him from all
reserved cases (Can. 2254).
If the penitent does not feel it a hardship already the con-
fessor may induce him to feel it, and then absolve him. But
in any case the confessor must impose on the penitent whom
he has absolved the obligation of having recourse within a
month at least by letter and through the confessor, if it can
be done without serious inconvenience, without mentioning
the penitent's name, to the Sacred Penitentiary or to the bishop,
160 THE SACRAMENT OF PENANCE
or to any other superior endowed with faculties for the case,
and of obeying his commands. Unless the penitent fulfils this
obligation he will again fall under the censure.
The ordinary confessors of exempt religious men of clerical
institutes can absolve from cases reserved in the order; as
also can confessors approved by the local Ordinary (Can.
518, 519).
If a confessor without special faculties absolves from a
reserved case in ignorance of the reservation, the absolution is
valid, except in the case of a censure ab homine or one most
specially reserved to the Holy See (Can. 2247, sec. 3).
CHAPTER XI
DE ABUSU SACRAMENTI POENITENTIAE
i. SANCTISSIMIS institutis abuti hominum malitia valet, nee
Sacramento Poenitentiae excepto. Ecclesia tamen nihil inten-
tatum reliquit ut abusus hujus sacramenti evitentur vel ut iis
si forte occurrant aptum rernedium praebeatur. Gregorius XV
aliique Romani Pontifices et praesertim Benedictus XIV leges
tulerunt contra sollicitationem in sacro tribunali ac absolutionem
complicis in peccato turpi. De his in hoc capite agimus ac
primo de sollicitatione (Can. 904).
De crimine sollicitationis in sacro tribunali Benedictus XIV
Constitutione Sacramentum Poenitentiae tria statuit. Primo
committit ac mandat omnibus locorum Ordinariis universi
orbis christiani in suis respectivis dioecesibus ut diligenter
omnique humano respectu postposito inquirant et procedant
contra omnes ac singulos sacerdotes, tarn seculares quam
regulares quomodolibet exemptos, qui sollicitationis sunt rei,
eosque graviter puniant. Rei autem sunt sollicitationis qui
aliquem poenitentem, quaecumque persona ilia sit, vel in actu
sacramentalis confessionis, vel ante, vel immediate post con-
fessionem, vel occasione, aut praetextu confessionis vel etiam
extra occasionem confessionis in confessionali, sive in alio loco
ad confessiones audiendas destinato aut electo, simulatione
audiendi ibidem confessionem, ad inhonesta et turpia solli-
citare, vel provocare, sive verbis, sive signis, sive nutibus, sive
tactu, sive per scripturam aut tune aut post legendam, tenta-
verint, aut cum eis illicitos et inhonestos sermones vel tractatus
temerario ausu habuerint. Secundo, omnes et singuli sacer-
dotes ad confessiones audiendas constituti tenentur suos
poenitentes quos noverint fuisse ab aliis sollicitatos sedulo
monere de obligatione denunciandi locorum ordinariis personam
quae sollicitationem commiserit, etiamsi sacerdos sit qui juris-
dictione ad absolutionem valide impertiendam careat, aut
sollicitatio inter confessarium et poenitentem mutua fuerit,
sive sollicitationi poenitens consenserit, sive consensum minime
praestiterit, vel longum tempus post ipsam sollicitationem jam
effluxerit, aut sollicitatio a confessario non pro seipso sed pro
alia persona peracta fuerit. Tertio, potestas absolvendi eos
ii. 161 ii
1 62 THE SACRAMENT OF PENANCE
qui sive per se sive per alios apud ecclesiasticos judices falso
innoxios sacerdotes sollicitationis accusant reservatur Summo
Pontifici, ut tarn detestabile facinus metu magnitudinis poenae
coerceatur (Can. 894).
2. Ex dictis igitur, quae fere ad verbum in Constitutione
Benedict! XIV inveniuntur, constat Ordinaries teneri sub gravi
inquirere in sollicitantes ac hujus criminis reos graviter punire.
Praxis Sacri Officii est ut post unam alteramve demmciationem
sacerdos denunciatus observetur. Post tertiam vero contra
suspectum procedi solet. . Ad formale examen vocantur parochi
aliique spectatae virtutis viri qui de indole et qualitatibus
denunciantis et denunciati sub juramento de veritate dicenda
et de secreto servando testimonium proferunt. Poenae jure
reis infligendae sunt privatio omnium facultatum ad confessiones
excipiendas, suspensio ab exercitio ordinis, privatio bene-
ficiorum, privatio vocis activae . et passivae si sit regularis,
omnes tamen sunt ferendae sententiae (Can. 2368). Termini
adhibiti in crimine definiendo strictae sunt interpretationis.
In actu sacramentalis confessionis : hoc intelligendum est de
intervallo quod intercedit inter benedictionem et absolutionem
etiam si poenitens non fuerit absolutus ob defectum disposi-
tionum vel ob aliam causam.
Ante vel immediate post : ita ut nulla actio non referibilis ad
sollicitationem intercesserit.
Occasione vel praetextu confessionis: occasio est quando con-
fessio sequebatur vel sequi debebat juxta intentionem petentis.
Praetextus habetur quando confessarius ficte proponit con-
fessionem ut sollicitet. Quare si mulier et sacerdos fingunt
confessionem faciendam ad alios decipiendos et ad tutius
peccandum non est locus denunciandi, nee probabilius si
poenitens praetexat confessionem ad sacerdotem vocandum et
sollicitandum. Probabilius non est denunciandus sacerdos
qui propter cognitam ex confessione fragilitatem mulieris earn
domi sollicitat, quia occasione scientiae ex confessione habitae
sollicitat, non occasione confessionis.
In confessionali sive in alto loco ad confessiones audiendas desti-
nato out electo simulatione audiendi ibidem confessionem: unde non
denunciandus est sacerdos qui sollicitat mulierem stantem ante
confessionale, deest enim simulatio audiendi ejus confessionem.
Inhonesta et turpia: haec significat gravia peccata contra
sextum decalogi praeceptum. Graviter inhonesti sermones vel
tractatus quin ulterius procedatur constituunt sollicitationem
si ceterae conditiones habeantur. Qui externe consentit
poenitenti sollicitanti videtur esse denunciandus.
DE ABUSU SACRAMENTI POENITENTIAE 163
3. Omnes confessarii monere suos poenitentes, sive feminas
sive masculos tenentur quos ab aliis sacerdotibus fiiisse sollici-
tatos noverint de obligatione denunciandi sacerdotes sollici-
tantes locorum ordinariis vel Sanctae Sedi per Sacrum Officium
vel per Poenitentiariam. Infra mensem ab accepta cognitione
denunciationis faciendae obligatio est implenda, aliter poenitens
sollicitatus incurrit excommunicationem nemini reservatam ex
Constitutione Pii IX, Apostolicae Sedis, et Can. 2368, sec. 2.
Omnes etiam qui certo sciant casum sollicitationis sacerdotem
reum denunciare tenentur, non tamen sub censura. Con-
fessarii monere poenitentes de obligatione denunciandi sol-
licitantes tenentur, etiamsi praevideant eos obligationem non
impleturos, nisi sint in articulo mortis, tune enim dissimulare
ob salutem animae licet. Nee capax est absolutionis qui onus
implere recusat vel saltern nisi promittat se onus impleturum
quum primum poterit. Confessarius audiens poenitentem qui
sollicitatus fuisse videtur, circumstantias casus investigare
debet ut moralem certitudinem de crimine patrato acquirat
antequam obligationem denunciandi sollicitantem imponat.
Denunciatio juridice est facienda, ac proinde qui denunciat
personaliter adire debet ordinarium loci ubi crimen patrabatur,
ac sub juramento testimonium dare. Qui ordinarium adire
nequit, ad eum scribat, ut delegatum sibi substituere valeat
ad denunciationem accipiendam. Scriptae denunciationes
anonymae nullius sunt momenti, nee sufficiunt ad obligationi
satisfaciendum.
Qui falso juridice accusat sacerdotem sollicitationis gravis-
simum committit peccatum et incurrit in excommunicationem
cujus absolutio speciali modo Romano Pontifici reservatur a
qua nequit ullo in casu absolvi nisi falsam denunciationem
formaliter retractaverit, et damna reparaverit. Peccatum
etiam ratione sui reservatur Sanctae Sedi (Can. 2363, 894).
4. Ex eadem Constitutione Benedicti XIV, Sacramentum
Poenitentiae, confessarius poenitentem quocum peccatum grave
contra castitatem commiserit a peccato complicem absolvere
nequit ; qui autem talem complicem absolvere attentat in casum
incidit specialissimo modo reservatum Romano Pontifici.
Eandem poenam incurrit qui se absolvere fingit vel, sive directe
sive indirecte, complicem inducit ad peccatum complicitatis
tacendum quum ad confessionem venit. Si vero poenitens
bona fide vel inadvertenter peccatum complicitatis omiserit
dum complici confitetur valide ab eo absolvitur. Idem videtur
dicendum si complex ab alio sacerdote directe a peccato com-
plicitatis jam absolutus idem peccatum postea tamquam
1 64 THE SACRAMENT OF PENANCE
materiam liberam sacerdoti complici confitetur. Praestat
autem lit sacerdos complex nunquam confessionem complicis
excipiat nisi in casu necessitatis (Can. 884, 2367).
Complex vero in peccato turpi hie intelligitur qui interne
et externe grave peccatum contra castitatem sive verbis sive
aspectu sive facto cum sacerdote etiam ante sacerdotium
susceptum commiserit. Ut incurratur censura absolutio debet
esse formalis ita ut sacerdos sciat se absolvere poenitentem
complicem, vel saltern ut ejus ignorantia sit crassa et supina.
Requiritur etiam ut poenitens cognoverit se peccasse cum hoc
sacerdote sive in actu peccati sive saltern ante absolutionem
acceptam, quamvis non sit necessarium ut poenitens confes-
sarium in actu confessionis agnoscat. Sacerdos igitur qui
larvatus et incognitus cum muliere peccavit earn adhuc ignor-
antem suum complicem absolvere valide potest, nam aliter
sese proderet poenitenti ac alii confessario ad quern poenitens
absolutionis causa accederet.
5. In articulo seu periculo mortis absolutio complicis data
a complice sacerdote semper est valida ne anima pereat, ait
Benedictus XIV. Praeterea complex moribundus qui nequit
aut non vult alteri sacerdoti confiteri licite etiam a complice
sacerdote absolvitur. Si vero alius sacerdos etiam non appro-
batus adsit, vel sine infamia et scandalo advocari possit ad
confessionem accipiendam, sacerdos qui complicem in periculo
mortis constitutum absolvat excommunicationem non evitat.
In locis remotis ubi complex alium confessarium habere
nequit, et in periculo est ne sine absolutione discedat e vita,
potest probabiliter a complice absolvi ne anima pereat. Poterit
etiam sacerdos facultatem obtinere ut complicem in tanta
necessitate absolvat.
CHAPTER XII
THE DUTIES OF A CONFESSOR IN THE
CONFESSIONAL
THE confessor does not satisfy his obligations merely by
absolving the penitents who come to him, and refusing abso-
lution to those who are not properly disposed. In the con-
fessional he holds the place of Christ for the reconciliation of
sinners with God; he is also the minister of the sacrament,
and as such he is bound to see that it is validly and lawfully
received by the penitent. In other words, as theologians say,
the confessor is the spiritual father, doctor, counsellor, and judge
of his penitents. Something must be said on each of these
heads (Can. 888, sec. i).
SECTION I
The Confessor as Spiritual Father
The confessor should remember how our Lord used to act
toward sinners during his mortal life; with what charity, for-
bearance, and patience he dealt with them, and he should
strive to imitate his divine model. Like him he should be
interested in the souls of men, not in their social position, age,
or sex. Whoever they may be, he should receive all sympa-
thetically and kindly. This does not mean that he should
treat all precisely in the same way. Just because of his interest
in his penitents and of his sympathy for them, he will treat
them as their various needs demand; not expecting the same
degree of virtue in all, nor attempting to raise all to the same
height of sanctity. He should try to discover what God
designs for each soul and be content to second the inspirations
of the Holy Spirit.
In dealing with pious penitents, especially of the other sex,
he should be brief and austere, otherwise he will lose much
time with little or no fruit, and expose himself to no little
danger. With these penitents, especially, he should treat of
nothing in the confessional except what concerns their con-
sciences, and that in a fatherly way, but briefly. Even if he
recognizes his penitents, it will be better as a rule not to show
165
1 66 THE SACRAMENT OF PENANCE
that he knows them for what they are outside the confessional.
He will thus be able to deal with them for the good of their
souls with more freedom and detachment.
SECTION II
The Confessor as Physician of Souls
1. It is the confessor's duty not merely to reconcile the
sinner with God by absolving him from sin, but by suggesting
to him means and remedies against relapse to enable the penitent
to lead a good life in future. The confessor is the spiritual
physician of souls, and he should be skilled in diagnosing the
diseases of the soul and in applying the proper remedy.
Catholic literature is very rich in ascetical books whose special
province it is to map out the way of spiritual progress, to point
out and describe the many vices and other obstacles to be
overcome by the Christian wayfarer, and the means to be
taken for the purpose. Among the best known of such works
are: Rodriguez' On the Practice of Christian Perfection, The
Devout Life of St Francis de Sales, The Spiritual Exercises
of St Ignatius, The Spiritual Combat, by Scupoli, etc. The
confessor should make himself as familiar as possible with
one or two such treatises, and he should have tested their worth
by applying the lessons which they give to the conduct of his
own life. Here it will be sufficient briefly to indicate some
general remedies which may be usefully prescribed in most
cases where there is a sincere desire to amend. Frequent
and fervent prayer, frequent reception of the sacraments of
Penance and the Eucharist, pious meditation on the end of life
and on the presence of God, avoiding evil company and the
occasions of sin, avoiding idleness by constant occupation of
mind and body, as far as is possible. Besides these general
remedies, the confessor may suggest special ones for the cor-
rection of particular vices. The selfish and thoughtless should
be told to practise kindness to those about them; the proud,
acts of humility ; the voluptuous, mortification of their passions ;
the envious, praising the good deeds of others; and so on.
There is special difficulty as to the best method of treating
recidivists and those who are placed in an occasion of sin, and
something must now be said on each of these classes.
2. A recidivist is one who after many confessions has fallen
into the same sin without any or with scarcely any amendment.
There is a controversy among theologians as to whether and
on what conditions such a one may be absolved. Certain
DUTIES OF CONFESSOR IN THE CONFESSIONAL i6j
rigorists maintained that a recidivist could not be absolved
until, by abstaining from sin for a considerable time, he had
proved the sincerity of his conversion. According to the
judgement of St Alphonsus, there is intolerable rigour in this
opinion. On the other hand, laxists held that a penitent who
has contracted a habit of sin should be absolved at once without
delay even though there be no hope of amendment, provided
that he make verbal profession of his sorrow and purpose of
amendment. The foregoing proposition was condemned by
Innocent XI, and if it were put in practice it would lead to
grave abuses. For a confessor cannot give absolution to one
whom he cannot reasonably judge to be truly sorry for his
sins. There are cases where in spite of verbal protestations
the confessor cannot form even a probable judgement that the
recidivist is truly sorry for his sins. And sometimes it will
benefit the penitent to defer absolution for a short time even
if it might absolutely be given at once. The common opinion
lies between these two extremes, and we cannot do better than
explain it in the words of Lugo, for the lengthy discussions
of subsequent authors on this question have added nothing
of substantial value to the older doctrine.
(a) If a confessor judge a penitent, notwithstanding a past
habit of sin, to have here and now a true sorrow and a firm
resolve not to sin again, he can absolve him; because present
sorrow and a purpose of amendment are sufficient, and future
amendment is not required. And so he may absolve him even
though he thinks he will fall again.
(b) But in the second place it is certain that when a priest,
considering the past habit of sin, the propensity to it, and other
circumstances, cannot judge the penitent to be sufficiently
averse from the sin, he cannot absolve him, however much the
penitent asserts that he is sorry, because if the priest does not
believe him he has not the requisite ground for giving absolution.
(c) It will help toward forming a judgement about the
present dispositions of the penitent if he show special signs
of sorrow, or if he has already tried to correct his habit, or
if, having never before been told what means to employ to
correct his habit, now, on being told, he willingly accepts and
proposes to employ them.
(d) Finally, it will sometimes be useful, with the penitent's
leave, to put off absolution for some days so as to excite the
penitent to make greater efforts to overcome himself and show
signs of real amendment. 1
1 Lugo, De poenit., xiv, n. 166; can. 886.
168 THE SACRAMENT OF PENANCE
3. An occasion of sin is an external circumstance which
leads one to commit sin. It is a proximate occasion if, when
a person is placed in it, it leads him to commit sin oftener than
not; otherwise it is remote. It is a necessary occasion if he
cannot avoid it by using ordinary diligence ; otherwise it is
voluntary.
(a) There is no necessity to avoid remote occasions of sin,
for it is not possible to do so, and in spite of them sin may be
avoided by using the proper means.
(b) We are bound to avoid proximate and voluntary occasions
of sin, for we cannot remain in them without exposing our-
selves to the proximate danger of committing sin, and if we
voluntarily choose to remain in a proximate occasion we
voluntarily choose the sin. As we are bound to avoid sin we
are bound to take the necessary means for that end. This
doctrine is confirmed by the 6ist, 62nd, and 63rd propositions,
condemned by Innocent XI.
(c) A necessary occasion is one which we cannot avoid. It
is physically necessary if we cannot physically get away from
it; it is morally necessary if it is more difficult to avoid it than
to keep from sin while in it by using proper means and pre-
cautions.
There is no obligation to avoid necessary occasions of sin,
for we cannot be obliged to do what is impossible; but we
are bound to take the necessary means to avoid sin in spite
of being in the occasion, and such means are always at hand
if we have the good will to use them, for God's goodness will
never permit us to be tried above our strength. By using the
means to avoid sin while placed in an occasion of sin, we make
the proximate occasion remote, as theologians say.
It follows from this that one who finds his ordinary avocation
in life, which is supposed to be an honest one, a proximate
occasion of sin to him is seldom bound to give it up ; he is only
bound to make the occasion remote, which is generally possible
with a good will and the help of God's grace.
SECTION III
The Confessor as Counsellor
i. The duties of the confessor require considerable expert
knowledge in one who aspires to the office. He must in the
first place have a competent knowledge of Christian morals
and of all that belongs to the valid and lawful adminstration
and reception of the sacraments. St Alphonsus teaches us
DUTIES OF CONFESSOR IN THE CONFESSIONAL 169
that it is not sufficient merely to know the general principles
of Christian morality; the confessor must have considerable
skill in applying those principles correctly, according to the
infinite variety which is found in human actions. The con-
fessor should have received a thorough grounding in moral
theology during the course of his priestly studies, and he should
continue to keep it up during the rest of his life, for it is quickly
lost unless means are taken to keep it fresh in the mind. The
Church shows that she is conscious of this danger by insisting
that all who have the cure of souls should at certain times every
year be present at the conferences of the clergy, where moral
questions are discussed. Every confessor is not called upon
to be an authority in moral questions, but at least he should
be able to decide correctly ordinary doubts and difficulties,
and know when to doubt about more serious questions.
2. The confessor is bound to instruct a penitent before he
can give him absolution when he finds that he is ignorant of
what he must know in order to receive the sacrament of Penance
validly and lawfully. And so if the penitent does not know
how to make an integral confession, or how to make an act
of contrition, the confessor must instruct him. In the same
way, he must teach one who is ignorant of those truths which
must be believed in order to be saved. Innocent XI con-
demned the proposition that a man is capable of receiving
absolution however great may be his ignorance of the mysteries
of the Faith, and even if through culpable negligence he does
not know of the mystery of the most blessed Trinity and of the
Incarnation of our Lord Jesus Christ. Ignorance of those
Christian truths whose knowledge is required by precept, and
of the obligations of one's state of life, is not a bar to valid
absolution, and in spite of it absolution may lawfully be given
on condition that the penitent undertake to learn what he
should know, if the confessor cannot give the necessary instruc-
tion at once.
3. No general rule can be laid down as to whether the con-
fessor should instruct a penitent whom he finds to be ignorant
on other matters. Various cases must be distinguished. If
the ignorance of the penitent is morally hurtful to him, as is
an erroneous conscience which thinks that a perfectly harmless
act is sinful, the confessor should put his conscience right.
Again, if the penitent asks whether an action is lawful or not,
the confessor should instruct him. In other cases, if the
penitent is ignorant of his obligation, and he would not fulfil
it even if he were told, as a general rule the confessor may and
i7o THE SACRAMENT OF PENANCE
should abstain from telling him under the circumstances.
For the information would do no good, but only harm, inas-
much as the sins which hitherto were only material would
henceforth be formal. There is, however, an exception to this
rule when what is done in ignorance and good faith is a cause
of public scandal, for then the public good requires that the
penitent should be told even to his temporary private loss.
On these principles authors agree that if a confessor detect
a diriment impediment between parties who think that they
are validly married, he should not inform them of it, at any
rate until he has obtained the necessary dispensation, so that
he can at once proceed to set the matter right.
SECTION IV
The Confessor as Judge
i. As judge in the tribunal of Penance the confessor passes
sentence and imposes satisfaction proportionate to the sins
confessed. If the penitent makes a full confession, is truly
sorry for his sins, and is ready to fulfil to the best of his ability
all his grave obligations at least, there is nothing to prevent
the confessor giving a penance and absolution at once. There
is no necessity for putting questions to well-instructed penitents
who make their confession with care and diligence, or to those
who have only light matter to confess. If, however, the penitent
does not fully declare the number and species of his grave
sins, or if the confessor is not satisfied about his dispositions,
he is bound to question him to procure a full confession and
the necessary dispositions before giving absolution. 1
If the confessor knows that the penitent has committed
some serious sin, but says nothing about it in confession, he
should question him as to whether there is anything else on
his conscience. If the penitent denies that there is, he should
as a rule be absolved; it is a received maxim that " the penitent
must be believed in his own favour as well as against himself."
Even if the sin was known to the confessor from the confession
of someone else, he must not, of course, put any question
which would amount to a violation of the seal, but he may
put a general question as to whether there is anything else,
and if the penitent denies that there is, he may as a rule absolve
even then. It may be that the penitent did not commit formal
sin, or that he has forgotten it, or thinks that he is not bound
1 4 Lat., c. 21 ; Ritual.
DUTIES OF CONFESSOR IN THE CONFESSIONAL 171
to mention it to this confessor, or there may be some mistake
on the part of the confessor or the informant. Still, if it is
quite evident to the confessor that the penitent is making a
bad confession, and so is not disposed for absolution, he cannot,
of course, absolve him.
2. The confessor's obligation of putting questions to the
penitent in order to supply any defect on the part of the latter
is a grave one. Still it is only secondary; the obligation lies
with the penitent in the first place, and so the confessor may
be excused from grave sin if occasionally he does not put
questions even to obtain what is necessary matter for con-
fession. We may allow this especially when the confessor is
weary after hearing a great many confessions, and, partly
through weariness, partly through some slight negligence, fails
to ask questions which are per se necessary.
3. The Ritual and theologians warn the confessor against
putting unnecessary and indiscreet questions to the penitent.
By doing so he may easily scandalize him or even teach him
to commit sin. This is especially the case with regard to the
young. In the matter of chastity it is a maxim that it is better
to fail in putting many questions than to put one which is not
necessary.
The confessor should be moderate in questioning the peni-
tent, and only put questions about matter in which it is probable
that he has committed sin. He should remember that the
penitent is only bound to confess what his own conscience
accuses him of; he does not sin nor is he bound to confess
according to the conscience of his confessor.
CHAPTER XIII
MISTAKES MADE IN HEARING CONFESSIONS
i. ONE who culpably causes unjust harm to another is
bound in justice to repair that harm as far as he can. Even
if the action which causes harm to another is done innocently,
there will nevertheless arise an obligation to prevent the harm
as far as possible as soon as the danger is noticed, and if there
is grave negligence in doing this without reasonable excuse,
injustice will be committed and the obligation of making
restitution incurred. A confessor who admits a penitent to
confession is bound in justice to absolve him if he is properly
disposed for absolution. And so if he has neglected to do so,
he must repair the error afterward, especially if the penitent
were in danger of death and may die in sin without sacramental
absolution.
Similarly, if the confessor gave his penitent false instruction
in faith or morals, or bad advice, or bound him to make restitu-
tion when he was under no obligation to do so by the law of
God, or released him from such an obligation when he was
really under it, the confessor must afterward correct his mis-
take, taking the precaution to ask the penitent's leave to say
something to him about his confession if an opportunity is
afforded him only out of confession. When the penitent was
wrongfully compelled to make restitution with grave fault on
the part of the confessor, the latter is bound in justice to make
him restitution for the loss that he has suffered, if he cannot
otherwise recover his money. The confessor is in the same
way bound to make restitution to the defrauded creditor when,
with grave fault, he released a penitent from the obligation of
paying a just debt, if in consequence the penitent is now un-
willing or unable to fulfil his obligation.
2. If the confessor merely neglected to impose a penance,
or supply for the deficiency of the penitent's confession by
questioning him, or failed to correct some mistake that he was
labouring under, or to warn him of the obligation of making
restitution, he did not thereby sin against justice, and he is
not bound to make restitution, unless indeed in the circum-
stances his silence was equivalent to positive approval. Still,
172
MISTAKES MADE IN HEARING CONFESSIONS r?3
if knowingly and wilfully he did any of these things, he com-
mitted sin, and in as far as harm to his penitent or to others
ensued he violated charity, which obliges every man to do what
he can to prevent loss and damage to others. Even out of
confession if he can prevent harm being caused by his failure
to do his duty in the confessional, he should with the penitent's
leave do his best to prevent it.
CHAPTER XIV
THE SEAL OF CONFESSION
i . BY the seal of confession is understood the religious obliga-
tion to keep secret anything that is manifested in sacramental
confession.
This obligation is imposed by the natural, the divine, and
by positive ecclesiastical law. For the very fact that a penitent
makes known his sins in secret to the confessor, with a
view to obtaining absolution, lays upon the confessor the
strictest obligation in justice and in charity not to violate the
trust placed in him, much as a doctor or a lawyer when con-
sulted about private matters is bound to observe secrecy with
respect to what has been confided to him. Our Lord, who
commanded all who fall into grave sin after Baptism to go to
confession, could not have imposed such an obligation without
requiring confessors to observe the strictest secrecy about
what they hear in confession.
The Church, too, in the Fourth Council of Lateran (c. 21)
forbids the confessor under grave penalties ever to betray by
word, sign, or in any other way, what he has heard in sacra-
mental confession. The Code punishes the confessor who
presumes directly to violate the seal of confession with excom-
munication most specially reserved to the Holy See, if in-
directly, with severe penalties. Others who violate the seal
are to be severely punished (Can. 2369).
The obligation of the seal of confession differs from all other
secrets in that it is never lawful under any circumstances to
make known the least thing that has been manifested by a
penitent in confession. If questioned about confessional
matter, even in a court of justice, the priest must always answer
that he knows nothing about it, as with perfect truth he may
do, for what he knows as a confessor, he knows as the vicegerent
of God, not as man. Not even to save his life or the lives of
others may a priest violate the seal ; like Fr. Henry Garnett, or
St John of Nepomuk, he must be prepared to lay down his life
rather than break the seal. He is never released from his obliga-
tion even by the death of the penitent, for people are unwilling
that their secret sins should be mentioned even after their death.
174
THE SEAL OF CONFESSION i?5
A grave sacrilege would be committed by the direct mani-
festation of the least fault known from sacramental confession,
but theologians allow that if the danger of confessional matter
becoming known is very remote there may be only venial sin
in indirect violation of the seal.
2. The person who hears the sacramental confession of
another made with a view to obtaining absolution is primarily
bound by the seal. Even if such a person were not a true
priest, but merely represented himself to be one, he would,
nevertheless, be bound by the obligation of the seal, for he
could not violate the trust placed in him without such violation
injuring the penitent and turning people away from the sacra-
ment.
Not only the priest, but all others, who mediately or imme-
diately come to know anything confessed to a priest with a
view to absolution, are bound by the pbligation of the seal.
Superiors, then, who are asked for faculties to absolve from
reserved cases, other confessors whose advice is asked about
cases of conscience, anyone who by design or by accident
overhears what is said in confession, are bound equally with
the confessor. 1 The obligation of the seal is imposed in
favour of the penitent; it is the penitent's secret, but he him-
self is not bound by it. It does not follow, however, that
penitents may without let or hindrance talk to others about
what the confessor has said or done to them in the confessional.
They are at least bound by a natural obligation to reveal nothing
which would tend in any way to injure or aggrieve the con-
fessor. A confessor may speak with the penitent in the con-
fessional about past confessions in as far as this is necessary
for the present guidance and instruction of the penitent; but
outside of confession he may not speak of confessional matter
even to the penitent without the latter 's express leave freely
given. There is a question discussed among theologians as
to whether one who finds and reads the written confession
of another violates the seal or is bound by it. It is better to
distinguish various cases. If the circumstances in which the
paper is found show that it has been used for the purpose
of making a sacramental confession, as when it is found in
the confessional, then the written confession is a sort of con-
tinuous confession, and knowledge derived from it comes under
the seal. The same must be said of a letter written to an
ecclesiastical superior for faculties to absolve from a reserved
case. Otherwise, inasmuch as the writing down of one's sins
1 Can. 889.
176 THE SACRAMENT OF PENANCE
is not sacramental confession, knowledge gained from such
a source without reference to actual confession does not seem
to come under the seal.
Similarly, there is a difficulty about giving or refusing to
the penitent an attestation that he has been to confession. If
the penitent is unworthy of absolution and has not been ab-
solved, but asks for the confessor's attestation that he has
been to confession, what is the latter to do ? If the refusal
of the attestation would in the circumstances show that the
penitent was not absolved, it is clear that it cannot be refused
without a violation of the seal; in other circumstances the
confessor will be free to give or refuse it.
3. Not only all sins mentioned in confession are the matter
of the seal, but everything which was mentioned because it
was thought to be a sin, and every circumstance which was
mentioned in order to make a full confession and whose mani-
festation would tend to injure the penitent or make confession
odious, comes under the seal. And so if one who is under
a vow of chastity mentions the fact in order to make a full
confession of a sin of impurity, the fact that the person is
under vow is protected by the seal. In the same way moral
and social defects, such as scrupulosity and illegitimacy, come
under the seal if they were made known with reference to
confession, and if their manifestation would be to the injury
of the penitent or make confession odious.
The virtues of a penitent are not the matter of the seal, nor
does a confessor seem to violate his obligation if he merely
says that he has heard the confession of such a one, unless
on account of special circumstances it would cause injury to
the penitent or make confession odious. Nor does a confessor
whose watch was stolen by a penitent while making his con-
fession break the seal by giving information of the theft to
the police.
4. The seal may be broken directly or indirectly. It is
broken directly when the confessor says that such a penitent
told him such a sin in confession. It is broken indirectly
when the confessor says or does anything or abstains from
saying or doing anything from which others may come to
the knowledge of confessional matter, or by which the penitent
may be aggrieved or confession made odious. A confessor,
then, indirectly violates the seal by changing his conduct to
the detriment of the penitent in consequence of what he has
heard in confession; by saying that a certain sin is rife in a
place in which he has heard few confessions; by talking
THE SEAL OF CONFESSION 177
with another confessor about the sins of a penitent of both
of them.
It used to be a common view among theologians that eccle-
siastical superiors might use knowledge gained in hearing
confessions for external government, provided that in such
use there was no direct or indirect revelation of confessional
matter. After the decree of Clement VIII, May 26, 1593,
and that of the Holy Office, November 18, 1682, this opinion
has become obsolete, and now it is universally held that no
knowledge gained in the confessional can be used by the priest
for external government if such use aggrieves the penitent,
or makes the sacrament odious, or otherwise directly or in-
directly violates the seal (Can. 890).
In spite of the strictness of the seal the confessor may make
use of knowledge gained in the confessional to correct his own
faults, to treat his penitents and others ,with more kindness,
to learn by experience how better to fulfil his duties as con-
fessor, how to preach more fruitfully, but always with prudence
and without giving any just cause of complaint to his penitents.
ii.
BOOK VII
EXTREME UNCTION
CHAPTER I
THE NATURE OF EXTREME UNCTION
i. THE Council of Trent defined that Extreme Unction is a
true sacrament of the New Law insinuated by St Mark and
promulgated and recommended to the faithful by St James
when he wrote : " Is any man sick among you ? Let him bring
in the priests of the Church, and let them pray over him,
anointing him with oil in the name or" the Lord: and the
prayer of faith shall save the sick man; and the Lord shall
raise him up; and if he be in sins they shall be forgiven
him." 1
This sacrament, as the Council of Trent also teaches, is the
complement or completion of Penance. As we have seen,
Penance was specially instituted for the remission of post-
baptismal sin, and its reception is necessary for all Christians
who have fallen into grave sin after Baptism. Penance, then,
ordinarily precedes Extreme Unction, which is properly a
sacrament of the living; its primary effect is to infuse sancti-
fying grace into the soul for the salvation of the sick man.
If any sins still remain on the soul, provided that there be
at least attrition for them, they will be remitted together with
the remains of sin. By the remains of sin are undertsood
the temporal punishment due to them, spiritual weakness and
inclination to evil, lethargy in the doing of good. The sacra-
ment removes these wholly or in part, according to the dis-
positions of the recipient, and, moreover, if it be for the good
of the sick person and in keeping with the providence of God,
it restores him to bodily health. This last effect is not pro-
duced by miracle, but by means of natural causes; the sacra-
ment consoles and soothes the sick person, dispels his mental
anxieties, and the resultant state, with the blessing of God,
sometimes brings about a recovery. In order to produce this
effect with more certainty the administration of the sacrament
should not be too long deferred.
1 Jas. v 14, 15.
i8o EXTREME UNCTION
2. The remote matter of Extreme Unction is olive oil blessed
by a bishop for the purpose, or by a priest who has received
power to bless it from the Holy See (Can. 945). Ecclesiastical
law requires that priests obtain the oil of the sick from their
own ordinary, not from any other Bishop.
The proximate matter is the anointing with oil of the prin-
cipal organs of the senses, and where the organs are double
both are anointed, the right one first. In England, according
to the Ritual, the eyes, ears, nostrils, mouth, hands, and feet,
are anointed; but when the recipient is a woman in a public
infirmary or hospital, the priest has special leave to omit
the anointing of the feet if he thinks that it would excite scandal
or comment. According to Canon 947, sec. 3, the anointing
of the feet may be omitted for any reasonable cause.
If some sense-organ is wanting, the part of the body nearest
to where it should be is anointed. Each anointing has its
own special form, that for the eyes being: " By this holy
anointing and through his most sweet mercy may the Lord
forgive whatever sins thou hast committed through thy sight.
Amen." The form for the other senses is similar. If the
near approach of death will not allow of all the senses being
anointed with their appropriate forms, the forehead may be
anointed with the following general form: " By this holy
anointing may the Lord forgive whatever sins thou hast com-
mitted. Amen." 1 As, however, Extreme Unction is only
probably valid when administered with such a single anointing
under one general form, if there is time it should be repeated
immediately in the form prescribed by the Ritual.
1 S.O., April 25, 1906; can. 947, sec. i.
CHAPTER II
THE MINISTER OF EXTREME UNCTION
ONLY a bishop or a priest can validly administer this sacrament,
and the only lawful minister is the bishop or priest who has
the cure of souls in the place where the sick man dwells, or
another priest with his express or at least reasonably presumed
leave.
In the Latin Church one priest performs all the unctions,
but the sacrament is valid if different priests perform the
several unctions, as is done in the Greek Church. The organs
should not merely be touched with the holy oil, but anointed,
and the Ritual prescribes that this should be done by making
the sign of the Cross on the organ with the thumb after dipping
it in the oil. Care should be taken not to finish the form
before both organs have been anointed when they are double,
and the several anointings should be done continuously, as
it is probable that all together constitute the sacrament by
which grace is not given until the last anointing is finished.
The priest who has the cure of souls in the place is bound
to administer this sacrament to the sick in justice in person
or through another priest; in case of necessity any priest is
bound to administer it out of charity (Can. 939).
181
CHAPTER III
THE RECIPIENT OF EXTREME UNCTION
i. IN order to be able to receive Extreme Unction validly
a man must be baptized, must have attained the use of reason,
and must be in probable danger of death from sickness.
Extreme Unction, then, may be administered to those adults
who are in danger of death from disease, from the pains of
childbirth, from a wound, from poison, and from old age,
even though they be no longer in their right senses. It cannot
be validly given to soldiers before going into battle, to criminals
who are going to be executed, to imbeciles who have never
had the use of reason, to children who have not yet come to the
use of reason, nor to unbaptized persons. 1
2. This sacrament may only be given once in the same
sickness and in the same danger, but if the sickness be pro-
longed and after partial recovery the sick person again becomes
dangerously ill, Extreme Unction may be repeated. According
to some good authors, it may be repeated after a month's
interval, for as a general rule the danger may be considered
a new one after such a period of time.
No good Catholic would wish to depart this life without
the help of this and the other sacraments; still there is no
obligation under grave sin to receive Extreme Unction. But
although the faithful who, without despising it, neglect to
receive this sacrament do not thereby commit grave sin, yet
a priest who has the cure of souls would sin grievously if he
neglected to give those under his charge the opportunity of
receiving this sacrament in their last sickness. As soon as
there is probable danger of death the last sacraments may be
given in the following order: Penance, Viaticum, Extreme
Unction, and finally the papal blessing for the moment of
death.
Canon. 941 prescribes that when it is doubtful whether a
sick person has attained the use of reason, whether he is really
in danger of death, or whether he is dead, this sacrament
should be administered conditionally.
1 Ritual.
182
BOOK VIII
THE SACRAMENT OF ORDERS
CHAPTER I
THE NATURE OF ORDERS
i. THE priesthood of the New Law is not a mere office and
bare ministry of preaching the Gospel: Our Lord instituted
it and gave it the power of offering the sacrifice of his Body
and Blood and of forgiving sins. 1 This power is conferred on
priests by the sacrament of Orders, which also gives the grace
to those who are rightly ordained to perform their sacred
functions worthily. Those functions are various, and partly
by divine institution, partly by ecclesiastical, they have been
divided and assigned to separate grades of a spiritual hierarchy.
The perfection of the priesthood and the whole of its powers
reside in the episcopate ; some portion of what bishops possess
is communicated to the inferior ranks of the clergy by a special
rite for each grade. Thus Orders is one sacrament, but the
different ranks of the clergy participate in it in different degrees,
or in other words, there are several Orders. There are three
major or sacred Orders, to which by ecclesiastical law is an-
nexed a solemn vow of chastity, and there are four minor Orders.
The sacred Orders are the priesthood, the diaconate, and the
subdiaconate; by the minor Orders are ordained acolytes,
exorcists, lectors, and door-keepers.
It is a moot point among theologians whether all these
Orders are sacraments or not; more probably only the epis-
copate, priesthood, and diaconate are sacraments and of
immediate divine institution, the rest being of ecclesiastical
institution. Those Orders which are sacraments impress a
character on the soul.
The first tonsure, by which a lay person is made a cleric, is
certainly of ecclesiastical institution and is not a sacrament.
2. The matter of the minor Orders is the handing to the
cleric the symbols of the office to which he is ordained, and
the words which accompany this act constitute the form.
There is a controversy whether the handing to the sub deacon
1 Trent, sess. xxiii, c. I.
183
i8 4 THE SACRAMENT OF ORDERS
of an empty chalice with the paten alone, or also the giving
to him of the book of epistles, is the matter of the subdiaconate,
and similarly with regard to the form. It is also a matter of
controversy whether the imposition of hands alone is the
matter of the diaconate, priesthood, and episcopate, or the
handing to the ordinand the symbols of his office, or whether
both together constitute the matter. There is the same
difference of opinion with regard to the form, but these ques-
tions belong to dogmatic theology.
3. In practice, the rite prescribed for ordination in the
Pontifical must be observed, and if anything be omitted which
even probably belongs to the essence of the sacrament, the
whole must be repeated again, at least conditionally. Thus,
if in the ordination of a priest the chalice with wine and the
paten were not handed to the ordinand to touch while the
bishop pronounced the appropriate form of words, the whole
ordination would have to be repeated before one thus ordained
could be allowed to say Mass. Similarly, if the imposition of
hands is omitted which precedes and accompanies the prayer
and preface which are said by the bishop and which contain
the form, the whole rite must be repeated. On the contrary,
if the third imposition of hands which accompanies the prayer,
" Receive the Holy Ghost, etc.," is omitted, this portion of the
rite alone need be supplied afterward, as it is certain that it
only belongs to the integrity of the sacrament, not to its essence.
Although previous reception of the priesthood is more
probably necessary for the valid ordination of a bishop, the
inferior Orders do not seem necessary for the valid ordination
to the priesthood.
Whether three co-consecrators are necessary for the validity
of an episcopal consecration is disputed, but at least the Pope
can give faculties to have only one consecrating bishop.
The functions of those who are in minor Orders, with the
exception of exorcists, may, according to modern discipline,
be exercised by laymen.
CHAPTER II
THE MINISTER OF ORDERS
i. THE ordinary minister of Orders is a bishop, who is the
only valid minister of the episcopate and priesthood. A priest
may receive delegated authority from the Pope to confer minor
Orders, and the subdiaconate, and probably also the diaconate.
Thus Abbots have power to give minor Order to their own
subjects, and Cardinals, if they be priests, may give them to
clerics belonging to their titular churches in Rome.
Ecclesiastical law requires that Orders be received only from
one's own bishop, or from another bishop with his leave,
which is granted by giving the subject dismissorial letters.
The Code bids a bishop ordain his own subjects unless he
is prevented by some good reason.
One's own bishop, as far as Orders are concerned, is only
the bishop of the diocese in which the ordinand has a domicile,
together with origin therein, or simply a domicile without
origin ; but in this latter case the ordinand ought to affirm on
oath his intention perpetually to remain in the diocese, unless
there is question of promoting a cleric to Orders who has
already been incardinated in the diocese by the first tonsure,
or of promoting a student who is destined for the service of
another diocese in accordance with Canon 969, sec. 2, or of
promoting a professed religious, of whom there is question
in Canon 964, n. 4 (Can. 956).
2. By the common law, regulars must be ordained by the
bishop in whose diocese their convent is situated, but some
have a special privilege of giving dismissorials to their mem-
bers for ordination by any bishop who is in union with the
Holy See. Whenever a bishop holds an ordination outside
his own diocese he requires the leave of the bishop of the
place to exercise pontifical functions.
185
CUAPTER III
THE SUBJECT OF ORDERS
i. To be able to receive Orders validly, the subject must be
of the male sex and baptized (Can. 968). It has always been
understood in the Church that women cannot receive Christian
Orders. Moreover, an adult must have at least an habitual
and express intention to receive ordination (unless indeed he
is an imbecile and has never had the use of reason).
2. Many qualities and conditions are requisite for the
lawful reception of Orders about which something must here
be said ; the fuller treatment of this matter belongs to canon law.
As we saw when treating of the clerical state, one who
aspires to Orders must be of good life and must be called by
God.
At least the Orders which are sacraments should be received
in the state of grace, and Canon 1001 prescribes that before
receiving the first tonsure and minor Orders the ordinand
should devote at least three whole days to spiritual exercises,
and before receiving sacred Orders he should devote at least
six whole days to them.
In order that one may be lawfully ordained Canon 974
requires: (i) The reception of the sacrament of Confirmation;
(2) moral conduct agreeably to the Order to be received; (3) the
canonical age; (4) the required knowledge; (5) the reception
of the lower Orders; (6) the observance of the interstices;
(7) a canonical title if there is question of major Orders.
The subdiaconate may not be conferred before the com-
pletion of the twenty- first year of age, the diaconate before
the completion of the twenty-second, and the priesthood before
the completion of the twenty-fourth (Can. 975).
No one, whether secular or religious, is to receive the first
tonsure before beginning his course of theology (Can. 976).
The subdiaconate may not be given except at the end of the
third year of the course of theology, the diaconate only at the
beginning of the fourth year, and the priesthood only after
the middle of the fourth year (Can. 976, sec. 2).
Orders should be conferred by degrees, so that ordinations
by leaps and bounds are altogether prohibited (Can. 977).
1 86
THE SUBJECT OF ORDERS 187
Canon 978 prescribes that the interstices are to be observed,
and during them those who have been promoted should exer-
cise themselves in the Orders received according to the directions
of the bishop.
The interstices between the first tonsure and the Order of
door-keepers and between the minor Orders are left to the
prudent judgement of the bishop; one year should elapse
between the Order of acolytes and the subdiaconate ; three
months between the subdiaconate and the diaconate.
Without special leave of the Roman Pontiff minor Orders
may never be given with the subdiaconate or two sacred Orders
on one and the same day, and any custom to the contrary is
reprobated; it is also forbidden to give the first tonsure together
with one of the minor Orders, or all the minor Orders at once.
A bishop must have completed his thirtieth year.
By common law sacred Orders should be conferred during
Mass on the Saturdays in Ember Week, or before Passion
Sunday, or before Easter Sunday. For grave reason a bishop
can confer them on any Sunday or holiday of obligation.
The first tonsure may be conferred on any day and at any
time ; minor Orders on Sundays and on doubles, in the morning
(Can. 1006).
Those who receive sacred Orders must communicate in
the Mass of ordination (Can. 1005).
The Church does not wish her clergy to have to beg or to
exercise some unbecoming trade in order to gain a livelihood,
so she requires that to be admitted to sacred Orders a cleric
must have a title, as it is called, or a certain guarantee of decent
support. Various titles are recognized by ecclesiastical law,
such as a benefice, pension, patrimony, poverty for religious,
a common table, the Mission, and others. If a cleric already
ordained loses the title of his ordination he should find another,
unless in the bishop's judgement his decent support is other-
wise provided for (Can. 980).
Before ordination regulars must be solemnly professed,
unless they have a special privilege by which simple profession
suffices.
After ordination a priest pays homage to the bishop and
solemnly promises obedience to his ordinary. He undertakes
no new burden by this promise ; he simply binds himself anew
to pay canonical obedience to the bishop in all matters subject
to his authority; and a secular priest obliges himself not to
leave the diocese for which he was ordained without the leave
of his bishop.
BOOK IX
MARRIAGE
CHAPTER I
BETROTHAL
i . THE seventh sacrament of the Christian Church is Marriage,
and because it is usually preceded by an engagement to marry,
we will first treat of betrothal. Betrothal may be defined as
a mutual promise of future marriage between persons who
may marry lawfully. i
It is a mutual promise or a bilateral contract between a man
and a woman, and the conditions which are required for the
validity of any bilateral contract are requisite for betrothal.
There must be a serious, voluntary, and deliberate intention
to enter into the agreement. Mere unmeaning flirtation, or
the expression of a wish by the man that he could make the
woman his wife, does not make a betrothal. Anything which
destroys the voluntariness of the act will prevent it from being
a valid contract. Substantial mistake about its nature or
about the identity of the other party to the contract, and
probably even mistake about some unessential quality in the
other party, if it were the motive for entering into the contract,
would make it null and void. As grave and unjustly caused
fear is a diriment impediment to marriage, so, too, it prevents
a valid engagement to marry.
The promise must be deliberate, made with full knowledge
and advertence to the serious step which is being taken.
There must be, as divines say, the deliberateness about the act
which is necessary to commit a grave sin. The mutual con-
sent of the parties must be expressed by words, writing, or other
suitable sign. The acceptance by a woman of a ring from
a man who has asked her to be his wife is a sufficient expression
of consent and concludes the contract.
For many years past a special law has existed in Spain by
virtue of which no betrothal is valid unless attested by a formal
document in writing. In the year 1900 this law was extended
to the whole of Spanish America, and by the decree of the
Sacred Congregation of the Council, August 2, 1907, no
189
MARRIAGE
betrothal between Catholics or in which one of the parties is
a Catholic is valid in conscience or in law or has any canonical
effects unless it is contracted in writing and is signed by the
parties, and also signed either by the parish priest, or by the
local ordinary, or at least by two witnesses. If either of the
parties or both of them are unable to write, the fact should be
noted in the document, and another witness must be added
who will sign the document together with the priest, or the
local ordinary, or the two witnesses mentioned above. This
decree binds all Catholics of the Latin rite throughout the
world, and takes effect from Easter Sunday, April 19, 1908
(Can. 1017).
The term parish priest in this decree is used to designate
not only him who is lawfully placed in charge of a canonically
erected parish, but in countries where there are no canonically
erected parishes the priest to whom the cure of souls in a definite
district is lawfully entrusted, and who is equivalent to a parish
priest, and in missions where as yet the districts are not defi-
nitely marked out all priests who in any place have the general
cure of souls assigned them by the superior of the mission.
The parties must be capable of entering into a lawful mar-
riage at any rate at the time contemplated when the engage-
ment is made. For a promise to do something which is
impossible or unlawful has no binding force, and so if at the
time contemplated there will still be some diriment or pro-
hibitory impediment between the parties, an engagement to
marry is void.
A valid contract to marry at a future time when the parties
will be free to do so may be entered into by those who are
now hindered by some impediment. And so children under
age, though incapable of marrying, may enter into a valid
betrothal. According to the old canon law, even their parents
might make a valid engagement for them, if they were present
and did not express dissent; or, if absent, afterward ratified
the contract. The decree of August 2, 1907, abolishes this
rule, as also the presumption of law by which marriage at-
tempted by children under age was presumed to be a valid
engagement to marry.
Some authors applied that presumption to the case of
clandestine civil marriages contracted in places subject to the
decree Tametsi of the Council of Trent. They held that
although such a marriage was null and void, yet it had the
effects of a betrothal, as in the case of those under age.
Leo XIII, however, by a decree dated March 17, 1879, decided
BETROTHAL 191
that a clandestine marriage has not the effects of a betrothal
even if the parties intended that it should have.
Betrothal of children under seven is presumed to be invalid
for want of the use of reason, but if it is proved that the parties
to the contract had sufficient use of reason in spite of their
tender age, the engagement will be valid; malice is then said
to supply for the want of age.
2. Betrothal under condition, as, " I will marry you if I
can earn 200 a year," is lawful, and follows per se the ordinary
rules of conditional contracts. Such a betrothal will impose
on the party who enters into it an obligation to do what he
can to fulfil the condition, and when the condition is fulfilled
the engagement will become valid and binding without any
renewal of consent. Similarly, an engagement in this form,
" I will marry you if I reach the age of twenty-one," will
become a binding engagement on attaining that age. On the
contrary, an engagement under an impossible condition is null
and void from the commencement. And so, if two parties
between whom there is a diriment impediment, which either
cannot be dispensed or for which a dispensation is not usually
given, enter into an engagement under the form, " I will
marry you if we can get a dispensation," there will be no valid
contract. It is much controverted among canonists and
divines whether the same is to be said when the impediment
is one for which a dispensation can be, and usually is, granted.
If cousins, for example, entered into an engagement under
the form, " I will marry you if I can get a dispensation," what
would be the effect of such an engagement ? There would,
of course, be an obligation to ask for a dispensation ; but if it
were got, would there be a valid betrothal by virtue of the
conditional engagement, or would the parties have to renew their
consent ? Many authors maintain that in this case there is no
valid betrothal without a renewal of consent. For proof of their
view they point out that the parties were not free to enter on an
engagement to marry on account of the diriment impediment
between them; that it is unbecoming to contract on condition
that the superior grant a dispensation from the law which should
be observed by all; and that when the question has been sub-
mitted to Rome the decision has uniformly been in favour
of this view. On the other hand, many good authors hold that
there is nothing in these reasons to prohibit us from applying
to such cases the ordinary doctrine concerning conditional
contracts, and so the general question remains undecided and
uncertain. Both opinions are theologically probable.
CHAPTER II
THE EFFECTS OF BETROTHAL
i. As betrothal is a contract and the matter is serious, the
betrothed are under a grave obligation in justice to fulfil their
engagement. If a special time was agreed upon, they must
keep to the appointed time, otherwise they must marry at a
reasonable time after the engagement has been concluded.
As grave inconveniences are likely to arise from a too prolonged
betrothal, it is the duty of those who have the cure of souls
to admonish those engaged that they should marry if without
just cause they defer doing so too long. A delay of over a
year without good reason seems excessive.
2. After betrothal the parties are under a special obliga-
tion to live chastely, and if either commit a sin of impurity
with a third person the sin has a special malice on account
of his violation of the fidelity which he owes to his betrothed.
It is a disputed point whether the circumstance of betrothal
changes the species of the sin so that mention of it must be
made in confession, or whether it merely aggravates its malice.
It is probable that it does not change the species of the sin,
for betrothal does not, like marriage, give one party a right
in the other, but gives only a right to have the other when the
engagement is executed.
3. Betrothal to one prevents valid betrothal to another as
long as the former tie lasts, for a promise to do what is unlawful
has no binding force. If, however, in spite of betrothal to one
the party marries someone else, the marriage will be valid but
illicit, just as the sale of a house to one person is valid in spite
of a previous promise to sell it to someone else. Betrothal,
in other words, is a prohibitory, not a diriment impediment of
marriage with third persons.
4. The consent of the parents of the parties is certainly not
necessary for the validity of marriage. The Council of Trent
teaches this. 1 Nor is it necessary per se for the lawfulness and
the validity' of betrothal, because in the choice of a state of
life every man is his own master. It does not follow, however,
from this doctrine, that children need not consult their parents
1 Sess. xxiv, c. i, de ref. Matr.
193
THE EFFECTS OF BETROTHAL 193
about marriage and about a partner for life. In a matter of
such importance for the future happiness of the child, and
because the marriage of a member of the family concerns not
merely the individual, but the whole family, and especially
the head of it, a dutiful child will ordinarily consult his parents
before entering on an engagement to marry. If a child wishes
to contract an unsuitable marriage, as if the heir of an honoured
house wishes to marry an actress of doubtful reputation, the
parents have a right to object to such a marriage; and if they
forbid it, the son is bound to obey, and he commits sin if he
goes against his parents' commands. An engagement contrary
to the reasonable commands of one's parents is unlawful and
therefore invalid. Mere inequality of rank between the parties
of itself is not a sufficient reason why parents should forbid
a marriage, but a difficulty arises when inequality of rank
will be the cause of dissension and ill-feeling in the family.
Even in this case a son who wishes to marry someone of inferior
rank is not always bound in conscience to submit to the wishes
of his parents. If he is satisfied that the woman he loves will
make him a good wife, and he is not prepared to take anybody
else, he is not bound to sacrifice his own happiness in deference
to the wishes of his parents, especially when these originate
in social prejudice rather than in a desire for the welfare of
their child.
English civil law requires the consent of the father or guar-
dian for the lawfulness of the marriage of a minor. In most
of the United States of America the law is similar.
Canon 1034 bids parish priests seriously to warn minors
against contracting marriage without their parents' knowledge .
and consent. If minors insist on doing this, parish priests
should not assist at the marriage without consulting the
Ordinary.
ii. 13
CHAPTER III
DISSOLUTION OF BETROTHAL
i . BETROTHAL, like other contracts, can be dissolved in various
ways. The parties may both agree to release each other and
then they will be free, for by a rule of law all things are dis-
solved by the same causes which gave them birth. If children
under age have been betrothed, they cannot release the con-
tract even by mutual consent until the age of puberty, and
then within three days either may resile from the contract
without waiting for the consent of the other party ; but if they
do not use this privilege granted by canon law they are presumed
to ratify the contract.
2. One of the betrothed may resile if a circumstance of
importance be detected or happen which if it had been known
before would have prevented the contract being entered into.
This rule is commonly admitted by divines, who explain it by
saying that betrothal is of its nature conditional, and has such
a condition as the above annexed to it. If, then, one of the
parties finds that the other has an ungovernable temper, or
great debts, or is given to drink, or if the other becomes afflicted
with a disease like consumption or paralysis, he will be free
to rescind the contract. The innocent party may resile if the
other commit fornication with someone else, and certainly the
man is free if he find out that the woman was corrupted even
before betrothal. The same rule may be applied in favour of
the woman when she finds out that the man committed forni-
cation before betrothal, at least if in the particular case it is
a sign of inconstancy or is very much resented.
Betrothal is annulled if an impediment of marriage come
to exist between the parties unless it had its origin in the
culpable fraud of one of them, for then he must do what he
can to obtain a dispensation or at least compensate the other,
as no one should reap advantage from his own fraud.
3 . One who is betrothed may resile in order to enter a religious
order, or to take sacred orders, or even with a view of living in
the world under a perpetual vow of chastity, for in all these cases
a higher life is embraced, and betrothal has also the condition
annexed, " Unless afterward I am called to a higher life."
194
DISSOLUTION OF BETROTHAL 195
4. The Pope may for a just cause grant a dispensation from
betrothal. Some authors maintained that the Pope had not
the power to grant such a dispensation, inasmuch as it would
violate the rights of the other party. However, if an individual
is unreasonably obstinate in the maintenance of his rights, the
head of the society to which he belongs should have the power
of granting relief to others whom that obstinacy places in
difficulties. This is what the Pope sometimes does; when a
civil marriage contracted in violation of betrothal to another,
though null and void in the eyes of the Church, makes it
impossible for the married party to return to his former be-
trothed, the Pope will grant a dispensation even if the other
party refuses to forego his rights.
5. When one of the parties labours under a secret defect
which, if known, would furnish sufficient ground for resiling
from the engagement, there is no Strict obligation to make
it known to the other party, unless it will be to his detriment.
Past sin, then, need not be declared, but if the woman has
undergone an operation which makes her incapable of bearing
children, she should not contract marriage with a man who is
ignorant of the defect and hopes to have children.
Whether marriage with a woman contracted in violation of
a promise of marriage made to another annuls the former
betrothal altogether, or whether the obligation to marry the
first is only suspended and revives again if the wife die before
the husband, is a disputed question among divines. Of course,
such a breach of faith makes the other party free to marry
someone else if she choose, and the opinion is at least probable
that by such a radical change in circumstances as marriage
with another the former engagement is altogether dissolved
and cannot revive. There is something incongruous in the
idea of a person who is married to one, being nevertheless still
under the obligation to marry someone else.
6. If a man after betrothal without the knowledge or con-
sent of his betrothed goes to live elsewhere at a distance so
that personal intercourse between them is impossible, the
woman may consider herself free to break off the engagement.
A short absence makes no difference in the mutual obligations
of the parties. If it is uncertain with what intention and for
how long a time a betrothed person has absented himself,
information as to his intentions should be sought by letter
before breaking off the engagement. If a time was fixed for
the marriage, the obligation is not extinguished by failure to
keep to the time, unless it is certain that the intention of the
196 MARRIAGE
parties was to break off the engagement if the marriage were
not contracted at the appointed time. Presents made to the
betrothed in view of marriage are forfeited if the engagement
is broken off through the fault of him who made the presents,
otherwise, if the fault is on the other side.
If it is certain that there is good cause for breaking off an
engagement, this may be done by private authority ; it will only
be necessary to have recourse to the ecclesiastical judge when
the cause is doubtful, or when scandal would arise if the
engagement were broken off by private authority on account
of the cause being unknown.
When valid betrothal has been broken off by one of the
parties without good reason, the other has no right of action
in the ecclesiastical court to compel the defaulting party to
fulfil the contract, he has only a right to an action for damages
(Can. 1017, sec. 3). This action is mixtifori (A.A.S., x, 345).
7. People who are only engaged to be married have not the
rights of married people, and if they attempt to use them they
are guilty of sin against the sixth commandment. It is, how-
ever, as a rule, morally necessary for them to become acquainted
with each other, and they are justified in showing to each other
those marks of affection which are not wrong in themselves
and which are usual in the circumstances. It is to be desired
that they should not be much together alone, especially at
night, and if they are left alone they should not show greater
familiarity toward each other than they do when a mother or
sister is with them.
CHAPTER IV
BANNS OF MARRIAGE
i. BEFORE publishing the banns of marriage the priest who
has the cure of souls must have at least a general knowledge
of those who wish to marry. The Ritual prescribes that he
should inquire whether there is between them any impediment
of kindred or affinity, or any other ; whether they wish to marry
freely and of their own accord; whether they be of age, and
know the rudiments of the Faith so as to be able to teach it
to their children (Can. 1020). ,
With regard to people with no fixed abode, strangers, the
wives of soldiers, sailors, and others, who are said to have
died in foreign parts, the Ritual admonishes the priest not to
admit them readily to marriage before making all needful
inquiries about them, and referring their case to the bishop,
so as to have his leave for the marriage.
Canon 1021 prescribes that the parish priest demand the
certificate of baptism of the parties unless they were baptized
in his parish, and their reception of Confirmation, as far as
possible.
2. If no impediment has been discovered by examining the
parties, the priest publishes the banns in accordance with the
decree of the Council of Trent. 1 " It ordains that for the future
before a marriage is contracted the proper parish priest of the
contracting parties shall three times announce publicly in the
Church, during the solemnization of Mass, on three continuous
festival days, between whom marriage is to be celebrated;
after which publication of banns, if there be no lawful impedi-
ment opposed, the marriage shall be proceeded with, in the
face of the Church."
The reasons for this law are: the avoidance of clandestine
marriages, so that it being known who are married, there may
be less danger of bigamous marriages; the discovery of im-
pediments of marriage; and the protection of the rights of
others arising from former betrothal. The banns must be
published by the parish priest in the church of the parish or
district where the parties have their domicile or quasi- domicile.
1 Sess. xxiv, c. i, de ref. Matr. ; can. 1024.
197
198 MARRIAGE
If they live in different parishes, the banns must be published
in both ; and if either or both have lived six months in another
place after the age of puberty, the parish priest should inform
the bishop, who will prescribe what is to be done (Can. 1023).
They must be published during the principal Mass on three
successive days of obligation ; but if the publication has been
omitted at Mass, the omission may be made good in the evening
if there be a considerable concourse of people at the evening
service.
3. The very form which is commonly made use of in publish-
ing banns shows that by them the Church intends to impose
a serious obligation on all who know of any impediment between
the parties who wish to marry to communicate their knowledge
to the parish priest. This precept of the Church will bind
even when the impediment is matter of a natural or promised
secret, for such a secret cannot avail against the just commands
of a superior. A professional secret binds more strictly, but
it does not excuse one who knows it from doing what he can
without betraying the secret to procure the removal of the
impediment.
4. The obligation of publishing banns is a serious one, but
for good reason the bishop or his Vicar- General may dispense
with them either wholly or in part. According to approved
theologians, the bishop is even obliged sometimes to dispense
with banns, when charity toward his flock requires it. Thus
a dispensation should be given when it is probable that other-
wise the marriage will be maliciously prevented, when it is a
necessary means to preserve the reputation of the parties who
are thought to be man and wife already, and when the parties
are obliged to depart at once to foreign countries. For lighter
reasons the bishop may dispense, but he is not obliged to do so.
A parish priest has no jurisdiction in the external forum,
and so he cannot dispense of his own authority from banns.
In some special case, however, it might be necessary to marry
the parties without delay, and then if there were no time to
have recourse to the bishop, a simple priest might declare that
under the circumstances the law with regard to banns ceased
to be of obligation.
Sec. i. According to Canon 1031, when a doubt has arisen
about the^ existence of an impediment between the parties
(i) The parish priest should investigate the matter more
carefully, interrogating at least two witnesses under oath, who
are worthy of credence, provided that there is no question of
an impediment from the knowledge of which the reputation
BANNS OF MARRIAGE 199
of the parties will suffer, and interrogating also the parties
themselves if it be necessary.
(2) Let him proceed with or finish the publication of the
banns if the doubt arose before they were begun or before
they were finished.
(3) Let him not assist at the marriage without consulting
the Ordinary if he prudently judge that the doubt still remains.
Sec. ii. When a certain impediment has been discovered
(1) If the impediment be secret, let the parish priest pro-
ceed with and finish the banns, and without mentioning names
let him report the matter to the local Ordinary or to the Sacred
Penitentiary.
(2) If it is public and is discovered before the publication
of the banns is begun, let the parish priest not proceed further
until the impediment is removed, although he may know that
a dispensation has been obtained only for the forum of con-
science ; if it is discovered after the first or second publication
of banns, let the parish priest finish the banns and report the
matter to the Ordinary.
Sec. iii. Finally, if no impediment, doubtful or certain, has
been discovered, let the parish priest, after the banns are pub-
lished, admit the parties to the celebration of marriage.
Canon 1030 lays it down that this should not be done until
the parish priest has received all the necessary documents and
three days have elapsed after the last publication of the banns,
unless there be some good reason to the contrary.
Canon 1026 forbids banns to be published of a marriage which
is contracted by dispensation from the impediment of mixed re-
ligion or difference of worship, unless the local Ordinary deems it
proper to permit them with prudence and the removal of scandal,
provided that the apostolic dispensation has been granted and
no mention be made of the religion of the non- Catholic party.
The Ritual prescribes that the parties should be diligently
instructed how they should live in a pious and Christian way
in the state of wedlock. This is done partly in the confessional,
partly outside. The parish priest may make a brief discourse
to them at the end of the ceremony, or if he prefer he may
read to them the instruction which is inserted in the Ritual
for the purpose (Can. 1033).
Canon 1034 bids parish priests seriously to warn minors not
to contract marriage without the knowledge of their parents
or against their reasonable wish. In case of disobedience
parish priests should not assist at the marriage without con-
sulting the local Ordinary.
CHAPTER V
THE MARRIAGE CONTRACT
i . MARRIAGE may be defined as a contract between a man and
a woman by which they give each other the right to exercise
the acts requisite for the procreation of children, and bind
themselves to live indissolubly together. Living in accord-
ance with this contract constitutes the state of marriage.
The primary end of marriage is the procreation of children
for the preservation and increase of the race; besides this
there are also the secondary ends of mutual society and help,
and a lawful outlet for concupiscence. The Fathers and
councils mention a threefold good in marriage : that of children,
that of mutual fidelity, and that of the sacrament, or an indis-
soluble and holy union, typified by the union between Christ
and his Spouse the Church.
It is the teaching of the Church, defined by the Council of
Trent, that marriage between baptized Christians is a sacra-
ment, and so Christ our Lord, though he did not institute
marriage, yet raised it to the dignity of a sacrament of the
New Law, causing the marriage contract to be productive of
grace ex opere operate whenever it is worthily entered into by
baptized Christians. Between these the contract is the sacra-
ment, there is no real distinction between them, and among
Christians a marriage cannot be valid without being also a
sacrament (Can. 1012, 1013).
2. There are certain technical terms used by theologians to
designate different kinds of marriage, and it will be well to
give them here.
A valid marriage between non-baptized persons is called
legitimate; when it is perfected by the use of marital rights it
becomes consummated; a valid marriage between Christians
not yet consummated is said to be a ratified marriage.
A true marriage is one that has been validly contracted and
which can be proved by suitable arguments; a presumptive
marriage is one presumed by law; a putative marriage is one
thought to have been validly contracted by at least one of the
parties, until both parties become certain of its invalidity
(Can. 1015).
200
THE MARRIAGE. CONTRACT 201
A canonical marriage is one celebrated according to the laws
of the Church ; a civil marriage is contracted according to the
laws of the State ; a secret marriage, or a marriage of conscience,
is one celebrated without banns by the bishop's leave before
the parish priest and witnesses who are bound to secrecy;
a morganatic marriage is contracted by a person of rank with
one of inferior position in life on condition that she and her
children are excluded from the rank of the father.
3. Marriage is rooted in human nature; it was instituted
by God and raised by our Lord to the dignity of a Christian
sacrament ; and so of course it is honourable and its use is
lawful. The marital rights, or the debt as St Paul calls it, 1 is
the matter of the matrimonial contract, and therefore the right
to use marriage is of its essence, and without it marriage cannot
exist. However, marriage does not necessarily imply the exercise
of the right which it gives, any more 'than the ownership of a
house implies the use of it. Our Lady and St Joseph were
really married though our Lady always remained a virgin.
Although marriage is lawful and honourable, yet all are not
commanded to marry. A man may remain a bachelor if he
please, and many women remain single without their having
the option of being married. The Church, following St Paul,
teaches that the state of celibacy, or virginity, voluntarily
chosen in order to render a more whole-hearted service to
God, is more perfect than the state of marriage. Our Lord
himself said that there are some who refrain from marriage
for the sake of the kingdom of heaven, and he added, " He
that can take, let him take it." At the same time he said,
" All men take not this word, but they to whom it is given." 2
And certainly for some who are strongly inclined by nature to
the pleasures of the flesh, or who have fostered their passions
by indulgence, the word of St Paul remains true: " It is better
to marry than to be burnt."
4. The efficient cause of marriage, as of all contracts, is
the consent of the parties lawfully expressed outwardly by
sensible signs. That consent must be mutual, referring to the
present, not to the future ; it must be deliberate and voluntary,
and expressed by suitable signs ; not only because it is a bilateral
contract, but also because it is a sacrament, which is essentially
an outward sign of invisible grace.
For the validity of the contract any suitable signs by word,
or writing, or nods, would suffice. The contract is valid when
entered into by proxy, by letter, or by other means of com-
1 i Cor. vii 3. 2 Matt, xix n.
202 MARRIAGE
munication between the absent. Ordinarily, for the lawful
celebration of marriage the parties must be present with each
other, and all must be done in accordance with what is laid
down in the Ritual and in law.
Anyone who having entered into the contract of marriage
afterward asserted that he had only feigned consent would
not be listened to in the external forum. In the forum of
conscience he should be told that he must give a real and
internal consent, as that is practically the only way to repair
the injury which by his fraud he has inflicted on the other
party. If such a case occurred, it would not be necessary to
go through the form of marriage again; all that would be
required would be for the defaulting party to make good the
expression of his consent (Can. 1135).
5. Marriage should be contracted absolutely, but if in any
particular case it is contracted under condition, we must dis-
tinguish various cases to see how the condition will affect its
validity.
(a) A marriage contracted under a condition which has
reference to the past or to the present and is verified, as, "I
agree to marry you if you are a maid," is valid, but it will not
be lawful to use marital rights until it is known whether the
condition is verified or not. If the condition is not verified,
the contract is invalid.
(b) An explicit condition against the essence of marriage
which has reference to the future makes it null and void for
want of true consent to marriage. Thus the conditions, " I
marry you if you agree to have no offspring," or, " Until I find
a more suitable partner," or, " If you will sell yourself for
money," make the marriage null and void; for such conditions
destroy the perpetual and exclusive right, the transference of
which is of the essence of the contract of marriage.
(c) If nothing against the substance of marriage is expressed
in the contract, but one or both of the parties intends to do
something which is against the essence of marriage, such an
intention will vitiate the contract or not, according as it ex-
cludes marital rights or only implies a determination to abuse
them. Thus if a man intended to have two wives on a footing
of perfect equality, he would be married to neither of them;
but if he intended really to be married to one and was also
bent on keeping a concubine, his marriage with the first would
be valid. Similarly, if two were to marry with the intention
of living together in virginity, the marriage would be null and
void if there was no transference of marital rights; if their
THE MARRIAGE CONTRACT 203
intention excluded only the use of marital rights, the marriage
would be valid.
The validity of marriage contracted with mutually opposed
intentions will depend on which is predominant, or on which
would be chosen if their mutually destructive character were
known and realized. And so, if a baptized person wants to
be married but does not want the sacrament of matrimony,
he will be married if that is the predominant intention ; he will
not be married if the intention to exclude the sacrament is
predominant (Can. 1092).
CHAPTER VI
THE MINISTER, MATTER, AND FORM OF
MATRIMONY
i . WE have seen that according to the teaching of the Church
the contract of marriage was raised by our Lord to the dignity
of a sacrament, so that the marriage contract constitutes the
sacrament, and as such confers grace on baptized and worthy
recipients to enable them to perform the duties of their state
of life like true Christians. The efficient cause of the contract
is the mutual consent of the parties, who thereby confect the
sacrament, and who are, therefore, its ministers to each other.
The remote matter would seem to be the marital rights which
are the matter of the contract; the proximate matter is the
mutual offer, and the form the mutual acceptance of those
rights. It is uncertain whether a Christian who by dispensa-
tion marries a non-baptized person receives the sacrament or
not, as the other party is certainly incapable of receiving a
sacrament. It is also disputed whether the marriage of un-
baptized persons who are converted to the Faith becomes a
sacrament on the reception of Baptism.
2. The civil authority probably has power over the marriages
of non-baptized subjects, so that it can make diriment and
prohibitory impediments to such marriages for the common
good. Christian marriage is a sacrament, and the administra-
tion of the sacraments belongs exclusively to the Church, so
that the State has no power to make diriment or prohibitory
impediments for Christian marriage. The regulations which
the civil authority makes concerning marriages of soldiers and
others should, of course, be observed if they are reasonable
and just, but they are not impediments in the strict sense.
There is nothing to prevent the State from making laws con-
cerning the civil effects of marriage, such as the property
rights of married people, rights of inheritance and succession,
titles of nobility, and similar matters ; these things are within
the competence of the State. But questions which affect the
bond of marriage and the capacity of parties to contract
marriage belong exclusively to the Church, and so 'laws of
divorce made by the civil authority are of no validity in the
204
MINISTER, MATTER, AND FORM OF MATRIMONY 205
forum of conscience, except in so far as they sanction and
apply the laws of the Church (Can. 1016).
3. Marriage is a sacrament of the living, and should be
received in the state of grace. The priest should endeavour
to get the parties to go to confession and Communion when
they are married, so that they may enter on their new state of
life with the blessing of God, The rite in Catholic marriages
should be performed in the Church, and if the wife has not
received the nuptial blessing before, it is the wish of the Church
that, whenever the rubrics permit, the Mass Pro Sponso et
Sponsa should be said, and the nuptial blessing given as therein
laid down. This Mass may be said on all days outside close
time except on feasts of the first and second class, and on
days of obligation. On these days, however, a commemoration
may be made of the Mass Pro Sponso et Sponsa and the prayers
after the Pater and Communion may be added.
The common law of the Church prescribes that the nuptial
blessmg shall not be given out of Mass, and in England, by
a special indult of the Holy See, when the nuptial Mass is not
said, a special blessing is given by the priest according to the
Ritual.
In England the State does not acknowledge Catholic mar-
riages unless they are celebrated in presence of a registrar and
in a building registered for marriages. A priest who solemnized
marriage otherwise would be liable to severe punishment as
a felon. Due notice of a marriage must also be given to the
superintendent registrar of the district or districts in which
the parties reside. The marriage cannot take place without
the registrar's certificate, which cannot be granted before the
expiration of twenty-one days after the notice has been entered
if the marriage is to be without licence, or of one day if it is
to be with licence. These and other laws which the civil
authority has imposed on Catholic marriages should be ob-
served in order that the marriages of Catholics may be recognized
by the law of the land, and to avoid greater evil. The Non-
conformist Marriage Act of 1899 enabled Nonconformists to
dispense with the presence of the registrar, but its onerous
conditions prevented the Catholic Bishops from accepting it
except in some parishes.
CHAPTER VII
THE PROPERTIES OF MARRIAGE
i. UNITY and indissolubility are the properties or peculiar
qualities of marriage which we have to discuss in this chapter.
Its unity consists in its being a contract in which the parties
are necessarily one man and one woman. If several men
have one and the same wife at the same time, we have polyandry,
which is contrary to the law of nature, for it prevents the natural
increase of the human race, makes domestic life almost im-
possible, and on account of the uncertainty of paternity renders
the proper education of the children who are born very diffi-
cult. If one man has several wives at the same time, there is
polygamy, which is certainly less in keeping with man's nature
than monogamy. Polygamy degrades woman, destroys that
equality which in regard to marriage rights should exist between
the sexes, and makes it difficult for peace and harmony to reign
in the family. It is certainly against the positive divine law,
promulgated anew by Christ our Lord, and obligatory on all
men after the preaching of the Gospel. The Council of Trent
anathematized him who should say that it is lawful for Christians
to have several wives and that this is not forbidden by divine
law. 1
2. Marriage is also indissoluble, at least by divine law, so
that no human power can dissolve a marriage once validly
contracted; "What God hath joined together let no man put
asunder." 2 This text has the strictest application to the
consummated marriage of baptized Christians which can only
be dissolved by divine authority. The Pope can for a grave
reason dispense in the ratified but not consummated marriage
of a Christian ; ratified marriage is also dissolved by religious
profession of solemn vows ; and there is the case of the Pauline
privilege.
(a) The Pope not unfrequently uses the power given to him
by our Lord tq dissolve the merely ratified marriage of Catholics
for some grave reason. A probable suspicion of impotence
in one of the parties, and a serious quarrel which leaves no hope
of reconciliation, have been held sufficient causes for granting
1 Sess. xxiv, c. z. 2 Matt, xix 6.
206
THE PROPERTIES OF MARRIAGE 207
a dispensation from a ratified marriage. As the Pope has no
jurisdiction over non-baptized persons, he cannot exercise his
authority to dissolve their marriages. But if a non-baptized
married couple were converted to the Faith, the Pope would
have power to dissolve their marriage if it had not been con-
summated after baptism, for even if it had been consummated
before baptism it would only rank as a ratified marriage. By
authority of the Holy See a baptized pagan who had several
wives is sometimes permitted to keep any one of them who
may be converted with him, if the first is unwilling to become
a Christian. Similarly, a married pagan converted in circum-
stances which render it impossible to interpellate the other
party is sometimes allowed by papal dispensation to contract
another marriage with a Catholic.
(b) Solemn profession in a religious order with solemn
vows annuls a previously existing ratified marriage by ecclesi-
astical law. Mere entrance into religion and even profession
of simple vows in orders that have solemn vows is not sufficient.
By ecclesiastical law a period of two months is granted after
marriage, during which there is no obligation to render the
debt, in order that either of the parties may use his privilege
of entering religion (Can. 1119).
(c) The consummated marriage of two pagans may be dis-
solved by the Pauline privilege if one of them is converted to
the Faith, and the other will neither be converted nor live at
peace without trying to draw the convert to sin. It is in this
sense that the Church interprets the words of St Paul : " But
if the unbeliever " depart, let him depart. For a brother or
sister is not under servitude in such cases. But God hath
called us in peace." 1
The marriage is not dissolved by the Baptism of one of the
parties, but if the conditions mentioned above are verified, the
convert after Baptism may contract a second marriage with
a Christian, and by this marriage the former is dissolved. In
order that it may be known whether the other party is willing
to be converted or at least to live at peace with the convert,
he must be interpellated by the bishop or by his authority.
Both interpellations are required, and more probably they are
necessary for the validity of the second marriage, unless a
dispensation from them is obtained from the Holy See. Thus
in a case of insanity of the other party, a dispensation from the
interpellations was granted, and in countries where Christians
were forbidden to live with Jews, only one interpellation was
1 i Cor. vii 15.
208 MARRIAGE
put, " Whether the other party was willing to be converted to
the Faith," and if a negative answer was given, the convert
was free to marry again (Can. 1120 ff.).
3. Married people ought to live together as man and wife
unless there is some good reason to the contrary.
If one of the parties commits adultery, the other has the right
to separate from him altogether as to bed and board, unless he
consented to the crime, or was the cause of it, or expressly or
tacitly condoned it, or he himself has committed the same crime.
When an innocent spouse has separated from the adulterer
by his own authority or that of a judge, he is under no obliga-
tion to admit him again to marital cohabitation; but he may
admit him or recall him, unless with his consent he has adopted
a life incompatible with marriage.
If a spouse has joined a non- Catholic sect, if he is educating
a child as a non- Catholic, if he is leading a criminal and shame-
ful life, if he is the cause of grave danger to the soul or body
of the other, if by his cruelty he makes cohabitation too diffi-
cult for the other, these and similar causes are so many lawful
reasons of separation for the other party, by trie authority of
the local Ordinary and also by his own authority if the causes
are certain and there is danger in delay.
In all these cases when the cause of separation ceases co-
habitation should be restored; but if separation was decreed
by the Ordinary for a certain or uncertain time the innocent
party is not obliged to cohabit unless the time fixed has elapsed
or by the decree of the Ordinary (Can. 1128-1131).
4. Although questions concerning divorce and the separa-
tion of married people belong of right to the ecclesiastical
court, in most modern States the civil authority claims and
exercises jurisdiction in these matters. May Catholics take
their marriage cases to the civil courts, and may Catholic judges
and Catholic lawyers lend their aid in deciding them ? No
answer can be given to these questions which will apply to
all countries and circumstances. In some countries Catholics
can still have their rights safeguarded by recurring to the
ecclesiastical courts, and there is no reason why they should
carry their matrimonial suits to the civil tribunals. In England
and in the United States the Church tacitly or explicitly permits
Catholics to apply to the civil courts at least for a judicial
separation. Before doing so they should put their case before
the ecclesiastical authorities, and this is prescribed under
liability to penalties by the Third Plenary Council of Baltimore. 1
1 N. 126; S.O., December 19, 1860.
THE PROPERTIES OF MARRIAGE 209
With regard to divorce cases, Catholics in England and in
the United States may have recourse to the civil courts in order
to obtain a declaration of nullity when a marriage has already
been declared invalid or annulled by the ecclesiastical authori-
ties. They may not go to the civil courts in order to obtain
dissolution of a valid marriage with the intention of marrying
again. This is obvious from what has been said above. There
is a difficulty as to whether a Catholic may petition for a divorce
in the civil courts, not with the intention of considering the
marriage dissolved and marrying again, but in order to obtain
the civil advantages annexed to divorce, such as a change of
marriage settlements or release from the obligation of sup-
porting his wife's child by another man. The question is
disputed among theologians, but as the law in English-speaking
countries does not express hostility to religion and does not
affect to touch the conscience but only the external relations
of the citizens, the better opinion is that Catholics for good
cause may petition even for divorce in the civil courts, with
the intention of using only the civil advantages that follow
from it. A consequence of this is that Catholic lawyers and
judges may for grave reasons undertake these cases in the
civil courts. For greater safety and to show their submission
to the Church they should ask the leave of the Bishop.
. n.
CHAPTER VIII
THE IMPEDIMENTS OF MARRIAGE IN GENERAL
i. THE impediments of marriage are certain conditions or
circumstances which prevent marriage between the persons
whom they affect. Some have their origin in natural and
divine law, as the impediment of previous marriage, which as
long as it lasts prevents a second marriage; others have their
origin in ecclesiastical law, like that of public decency. Some
prevent marriage being lawfully contracted and are called
prohibitory, though a marriage contracted in spite of them is
valid; others are diriment impediments and where they exist
prevent marriage being validly contracted; but if they arise
after marriage has already been contracted they cannot make
it null and void.
Diriment impediments are, in general, annulling laws which
for the common good make the parties affected incapable of
contracting a valid marriage, and render the act null and void
if marriage is attempted in spite of them. Such laws remain
in force in spite of ignorance or fear, and so as a general rule
a marriage contracted in ignorance of a diriment impediment
which exists between the parties is null and void in spite of
the ignorance. In the same way private inconvenience does
not make a diriment impediment cease to bind, but if the law
cannot be observed without causing public harm and incon-
venience, then it ceases to be of obligation. Thus, if illness
prevents one of the parties from going to be married in the
Church on the day appointed, he is, not justified in contracting
marriage privately at home ; but if all the priests of a country are
driven out, as were those of France in the Revolution, marriage
may be contracted without the presence of the parish priest.
2. The impediments of natural and divine law bind all
men, whether infidels or Christians, and so a marriage between
parent and child is always and everywhere null and void. The
civil authority more probably has power to make impediments
of marriage which will bind its non-baptized subjects, but the
Church alone has power to make impediments for Christians
who have been baptized. 1 All baptized persons, whether
i Leo XIII, Encyc. Arcanum, February 10, 1880.
310
IMPEDIMENTS OF MARRIAGE IN GENERAL 211
Catholics or heretics or schismatics, are subject to the diriment
impediments of marriage unless they have been specially
exempted from them. For all who are baptized thereby
become members of the Church of Christ and subject to the
jurisdiction of the divinely constituted head of that Church.
The Supreme Pontiff, then, has power to bind all who are
baptized by those impediments of marriage which are of
ecclesiastical origin. Neither the practice of Rome nor the
express declarations of the Popes afford any ground for the
opinion that it is not the Church's intention to bind heretics
and schismatics by the diriment impediments of marriage.
Especially since the time of Benedict XIV many cases have
been decided of marriage contracted between non- Catholics
being declared null and void on account of some impediment
of ecclesiastical origin. The general principle is clearly stated
in the answer of the Sacred Congregation of the Council to
the Bishop of Rosenau, August 20, 1780: " But, you say,
because heretics in Hungary marry among themselves even
within the prohibited degrees in virtue only of royal permission,
I may well be asked what is to be said about the validity of
such marriages. The answer is that unless a lawful dispensa-
tion of the Church by whose authority those impediments
were introduced is obtained for them, the declaration of
Benedict XIV clearly decides that those marriages are invalid.
For it lays down that in Holland marriages between heretics are
to be held as valid, even though the form prescribed by the
Council of Trent was not observed in solemnizing them,
provided that no other canonical impediment stood in the
way ; and this exception shows clearly that if there be any other
canonical impediment, such as exists within the forbidden
degrees of kindred, those marriages are not valid."
According to the common opinion, then, marriages con-
tracted by baptized heretics and schismatics, when there is a
diriment impediment of ecclesiastical origin between the parties,
are invalid, though the impediment may not be recognized in
the sect to which they belong. Such marriages, however, inas-
much as they are contracted in good faith, are putative, and
the children are legitimate.
CHAPTER IX
THE PROHIBITORY IMPEDIMENTS
THERE are four prohibitory impediments of marriage according
to modern ecclesiastical law: the prohibition of the Church,
close time, betrothal, and simple vows. Something must be
said on each of these.
1 . The impediment called the Church's prohibition is either
special or general. A special prohibition of marriage is issued
by the parish priest, or the Bishop, or the Pope, when it has
been found out that the proposed marriage will violate the
rights of a third party, or when a well-founded suspicion arises
that there is some impediment between the parties (Can. 1023,
sec. 3). By a general prohibition is understood a law of the
Church which forbids marriage in the circumstances but does
not make it null and void if in spite of the prohibition it is
contracted. Thus the Church forbids marriage without banns
and mixed marriages. We have already treated of the law
concerning banns, and it will be more convenient to treat of
mixed marriages under the diriment impediment of disparity
of worship. Clandestinity, or marriage without the presence
of the parish priest and witnesses, is now a diriment impedi-
ment, to be treated of below. In Great Britain and in the
greater part of the United States of America the decree Tametsi
was never published, but clandestinity is now a diriment
impediment of marriage in Great Britain and in the United
States, as well as throughout the Western Church, by virtue
of the decree Ne temere, August 2, 1907, and Canon 1094.
2. During close time, or the periods between the first Sunday
of Advent and Christmas Day, and from Ash Wednesday to
Easter Sunday, the solemnization of marriage is forbidden
by the common law of the Church. The solemnization of
marriage consists especially of the Mass Pro Sponso et Sponsa,
the nuptial blessing, and outward pomp and feasting in con-
nection with the marriage. A simple and private marriage
without these solemnities during close time is not against the
common law (Can. 1108).
3. Betrothal between two persons prevents the parties from
lawfully marrying any third party unless the betrothal is legiti-
212
THE PROHIBITORY IMPEDIMENTS 213
mately broken off. In other words, betrothal is a prohibitory
impediment of marriage with any other person than the
betrothed, as we saw above.
4. There are several simple vows which are so many pro-
hibitory impediments of marriage (Can. 1058).
A vow of chastity hinders marriage, for he who has taken
such a vow exposes himself to the danger of violating it if
he marries, or of depriving the other party of his marital
rights. Even after marriage has been contracted the obliga-
tion of the vow remains, unless a dispensation is obtained or
the obligation of the vow is indirectly annulled by the other
party.
By a vow of virginity he who takes the vow promises God
that he will not commit a consummated sin against chastity.
He will sin, therefore, by marrying, because he exposes himself
to the danger of breaking his vow or of defrauding the other
party of his rights. If by a consummated sin against chastity
his virginity has been destroyed, the vow can no longer be
observed, and ceases.
The same rules hold with regard to a vow of celibacy which
is violated by marriage, but after marriage has been contracted
no further obligation remains.
Chastity, virginity, and celibacy are loosely used one for
the other, and if a case arose in the confessional the intention
of the penitent would have to be inquired into in order to
discover what obligation he wished to take upon himself by
his vow.
One who has vowed to receive sacred orders would commit
sin by marrying, for by marriage the other party obtains rights
which are incompatible with the observance of the vow.
Canon 987 lays down that marriage is an impediment to the
reception of orders, and so the obligation of the vow will
ordinarily cease as being impossible of fulfilment, though per se
it is only suspended, and revives on the death of the other
party.
Similarly, one who has taken a vow to enter religion commits
sin by marrying, as he makes the observance of his vow difficult
or impossible. Before consummating marriage he is still
bound by his vow if it bound him to enter a religious order
in the strict sense. After marriage has been consummated
he may use his marital rights, and the vow usually ceases on
account of impossibility of observance.
5. The power of dispensing from the impediments of an
absolute and perpetual vow of perfect chastity taken after
214 MARRIAGE
completing the eighteenth year of age, the vow of entering
religion with solemn vows, and the proof of liber status when
it is not 'altogether certain, are reserved to the Holy See.
Bishops can dispense in banns and in vows that hinder
marriage and are not reserved to the Pope. Regular and
secular confessors have specially delegated faculties for dis-
pensing in vows that are not reserved.
CHAPTER X
THE DIRIMENT IMPEDIMENTS
ARTICLE I
Impotence
i. IMPOTENCE is the incapacity to have carnal intercourse
such as is required for the procreation of children. It is
absolute if the incapacity extends to all persons of the other sex,
otherwise it is relative. Temporary impotence exists only for
a time, and may be cured by lapse of time or by some lawful
operation which does not endanger life; perpetual impotence
lasts for life. It is antecedent if it precedes marriage, otherwise
it is subsequent.
2. Antecedent and perpetual impotence annuls marriage by
the law of nature, for the matter of the marriage contract is
in that case impossible. This is true whether the impotence
be absolute or only relative, but in the former case marriage
is out of the question, while in the latter a valid marriage may
be contracted with someone else, though it is impossible with
a person with respect to whom the party is impotent. Subse-
quent impotence, which has supervened on marriage, cannot,
of course, annul the marriage already contracted, but if it is
altogether certain it makes the use of marriage unlawful (Can.
1068).
This, however, is not to be lightly presumed, for the right
is in possession, and for its lawful exercise it suffices if there
be any probability of its not being impossible.
Neither does antecedent but temporary impotence annul
marriage, for a contract is valid if the matter is possible or by
using ordinary means can be made possible.
When it is doubtful whether a spouse is impotent or not
the decision must be in favour of the validity of the marriage,
and since all such questions belong to the forum externum, they
fall under the cognizance of the bishop, nor can they be settled
by the confessor.
3. Mere barrenness or sterility is not impotence, nor does
it make marriage impossible or unlawful. There is a con-
troversy among experts as to whether removal of the ovaries
215
2i 6 MARRIAGE
or of the womb or of both organs makes a woman impotent
or only sterile. The decisions which have been given by the
Roman Congregations in particular cases are quoted in defence
of both opinions, and as yet no general solution of the question
has been given. Until this happens, a woman who has under-
gone such operations should not marry without consulting
the bishop, but if she is already married the more favourable
opinion should be followed. This impediment is recognzied by
English law.
ARTICLE II
Age
Males under sixteen years of age and females under fourteen
are presumed not to have that maturity of judgement which
is, requisite for entering the married state. The Church has
made them incapable of marrying by requiring the age of
sixteen complete in males and fourteen complete in females
for the validity of marriage (Can. 1067). The age of puberty
varies according to race and climate ; in northern latitudes it is
not reached till the age of about fifteen in girls and seventeen
or eighteen in boys. Even though the parties may not yet
be capable of having children, they may marry validly if they
are of the age required by the Church, though it is desirable
not to marry before full maturity. Those who are not baptized
are not subject to the ecclesiastical impediment of age, but
in this matter English law agrees with the old canon law,
which fixed the age of valid marriage at fourteen and twelve
respectively.
ARTICLE III
Previous Marriage
i. One who is already married cannot validly contract a
second, marriage unless the former bond is dissolved by one
of the means described above, or by the death of the other
spouse. Previous marriage, then, is a diriment impediment
of a second marriage as long as it subsists, by the law of nature
and by positive divine law. This impediment, therefore,
binds all men, whether Christian or heathen.
It is not lawful for one who has been married before to
contract a second marriage, unless there is certain proof that
the first marriage has been dissolved by lawful authority or
by the death of the former spouse (Can. 1069).
THE DIRIMENT IMPEDIMENTS 217
If the decease is proved by a certificate of death or some
similar authentic document, or by two witnesses who are above
suspicion, or by any other legitimate means, the parish priest
may allow the second marriage. If, however, there is no certain
proof to be had, and it is doubtful whether the party in question
is free to marry, the case must be referred to the bishop, who
will investigate the circumstances, and if any prudent doubt
remain he will not allow the second marriage without consult-
ing the Holy See. Sometimes in special circumstances the
Pope allows a second marriage, even when strict proof of the
death of the former spouse is not obtainable, as he did in the
case of the wives of the Italian soldiers who perished in the
battle of Adoua. 1
2. If a person has unlawfully contracted a second marriage
without the necessary certainty concerning the death of a
former spouse, it does not follow that the second marriage is
invalid, and that the parties must separate. If there is only
slight doubt about the death of the former spouse, after making
fruitless inquiries, the parties may live together as man and
wife. If only one of the parties is in bad faith and is not certain
of the death of a former spouse, while the other knows nothing
of the difficulty, he should render the marriage debt, but he has
no right to ask it as long as he remains in bad faith. If both
parties are in bad faith, they cannot lawfully use marriage as
long as they are in that state. Inquiries should be made,
and if probable reasons can be discovered for thinking that
the former partner is dead, they may use marriage, according
to a probable opinion. For even in this case the marriage has
been contracted, it is probably valid, and it is not certain that
anyone else has a prior right, so the parties should be allowed
to use it. If the second marriage was contracted in good faith,
and a doubt about the death of a former spouse arises subse-
quently, inquiries should be made, and if they are fruitless
the parties may live as man and wife. Of course, in all
cases when it is found out for certain that a former spouse
is alive, the second marriage is invalid, and the parties must
separate, or at any rate must not live as man and wife
together.
English law enforces this impediment, but if a former spouse
has not been heard of for seven years or more, it will not punish
the other party as guilty of bigamy if he marries a second time,
although he must separate if the former spouse appear sub-
sequently.
1 S.O., July 20, 1898.
2i 8 MARRIAGE
ARTICLE IV
Consanguinity
i . Consanguinity is the bond of relationship by blood exist-
ing between those who are descended by carnal generation
from one and the same near stock. The relationship, therefore,
arises from community of blood derived from a common and
not too remote ancestor. That common ancestor is called
the stock; the distance in descent between one person and the
other is called the degree of relationship; and the series of
persons who descend from the same stock is called the line,
which is direct if they descend from one another, otherwise it
is collateral. The degrees are equal in the collateral line if
the persons are equally distant from the common stock ; other-
wise they are unequal.
It is immaterial whether both parents of the common stock
are the same or only one, and whether the birth be legitimate
or not.
The method of computing the degrees differs somewhat in
canon law from that adopted by modern English civil law,
which here follows the Roman civil law. The following are
the rules for reckoning the degree of relationship according
to canon law, which is followed in moral theology :
(a) To find the degree of relationship in the direct line,
count the persons, leaving out the common stock.
(b) In the collateral line, when the degrees are equal, count
the persons in one of the lines of descent, leaving out the
common stock.
(c) When the degrees are unequal, count the longer line,
leaving out the common stock in the same way, and add the
number of persons in the shorter line. Thus, an uncle and
niece are related in the second degree, touching the first, or
mixed with the first (Can. 96).
According to the English method of computation, which is
also followed in most States of the Union, all the persons are
counted both in the direct and collateral lines, leaving out the
common stock. According to this method, an uncle and niece
are in the third degree.
Consanguinity in the first degree of the direct line annuls
marriage by the natural law ; and in further degrees indefinitely,
but more probably only by ecclesiastical law. In the collateral
line it is disputed whether consanguinity in the first degree
THE DIRIMENT IMPEDIMENTS 219
annuls marriage by the law of nature or not; it certainly does
so to the third degree by ecclesiastical law. 1
This impediment, therefore, is partly of natural, partly of
ecclesiastical law, and although in the more remote degrees
of both the direct and collateral line it does not bind those
who are not baptized, yet even among them there is a natural
bond in blood relationship which after Baptism becomes a
diriment impediment of marriage within the prohibited degrees.
One who is baptized is subject to the laws of the Church, and
cannot, without the necessary dispensation, marry a relation
within the forbidden degrees, even if the latter is not baptized.
English law follows in this matter that of Leviticus, and
according to its method of computation consanguinity is a
diriment impediment of marriage to the third degree inclusive,
but not beyond. Thus an uncle cannot marry a niece, but
two cousins may marry, by English law.
2. The impediment of consanguinity may be multiple from
various causes, but it is only multiplied as often as the common
stock is multiplied (Can. 1076, sec. 2).
(a) If two near relations marry, their offspring will be
related in several different ways :
A B
I
D
In this scheme G and H are descended from the common
stock C=F, and so they are in the second degree mixed
with the first in the collateral line. Both G and H are
also descended from A=B through C and through F. On
this account they are in the third degree of relationship.
Thus there is a double relationship between them, and if a
dispensation were required for G to marry H, mention should
be made of this fact.
(6) Similar results will follow if two relatives marry two
relatives :
A B
C/ \D=f
G H
1 Council of Lat. 4 (1215); can. 1076.
230 MARRIAGE
In this scheme G and H are descended from both A and B,
and they are in double second degree of relationship.
(c) Similarly, if one man successively marries two who are
related to each other :
A
=i=B / \C=r
E F
G H
G and H are in the second degree from the common stock Z),
and in the third from the common stock A. D is supposed
to marry his deceased wife's sister.
ARTICLE V
Affinity
1. Affinity is the relationship which one contracts with the
relatives by blood of a person with whom he has contracted
a ratified marriage only or a ratified and consummated marriage
(Can. 97, sec. i).
It has its origin in positive ecclesiastical law with regard to
the collateral line and more probably also in the direct line.
Affinity annuls marriage in the direct line in every degree,
in the collateral line to the second degree inclusively (Can.
1077). The degrees in affinity with the husband are the
same as the degrees of consanguinity with the wife and vice
versa.
2. As this impediment is of ecclesiastical origin, the Church
can dispense from it, but she does not dispense in affinity in
the first degree in the direct line.
The impediment of affinity is multiplied as often as the
impediment of consanguinity from which it proceeds is multi-
plied, and by marriage with a relative of a dead spouse (Can.
1077, sec. 2).
Affinity, however, does not generate affinity, so that two
brothers may marry two sisters, and a father and son may
marry a mother and daughter.
English law only acknowledges affinity arising between
those who are married, and it extends only to the same degrees,
computed in the same way, as does consanguinity.
THE DIRIMENT IMPEDIMENTS 221
ARTICLE VI
Spiritual Relationship
i. Spiritual relationship arises by ecclesiastical law from
the administration of Baptism and Confirmation, but only
that which arises from Baptism is a diriment impediment of
marriage (Can. 1079). According to modern discipline, it
annuls marriage between the minister of the sacrament and
the recipient, and also between the sponsors and the recipient.
As it has its origin in ecclesiastical law, it does not affect those
who are not baptized, and the impediment is doubtful and
consequently non-existent when Baptism is doubtful or only
probable. The impediment, as far as it affects sponsors, does
not arise if Baptism was administered privately without sponsors
and afterward the ceremonies with ; sponsors are supplied in
the Church.
ARTICLE VII
Adoption
By adoption a person becomes in law the child of another,
though he is not such by nature. Legal adoption, according
to Roman law, was a diriment impediment of marriage between
certain parties, and in this matter the civil law was canonized
by the law of the Church.
(a) It annulled marriage between the adopter and the adopted
and those descendants of the latter who were under his authority
at the time of the adoption.
(b) It annulled marriage between the adopted and the children
of the adopter as' long as they were under his authority.
(c) Finally, it annulled marriage between the adopter and
the widow of the adopted, and between the adopted and the
widow of the adopter.
Roman law, as such, is nowhere in force at present, and the
Code has made new provisions for the circumstances.
Canon 1059 prescribes that in those countries where by
the civil law legal relationship arising from adoption makes
marriage unlawful, marriage is also unlawful by canon law.
Moreover, Canon 1080 prescribes that those who are held
incapable of marrying each other by the civil law on account
of legal relationship arising from adoption, cannot validly
contract marriage and this by force of canon law.
In England adoption exists as a private contract between
222 MARRIAGE
the parties, but it is not otherwise recognized by law, and so
in England there is no room for the impediment of marriage
arising from legal adoption. In most of the States of the
Union there seems to be a form of adoption recognized by
law sufficient to make it the basis of the ecclesiastical im-
pediment. 1
ARTICLE VIII
Public Propriety
Before the issue of the new Code the impediment of public
propriety arose by ecclesiastical law from valid and certain
betrothal, and from ratified, not consummated, marriage.
The Code has made a great change in this impediment.
According to Canon 1078, the impediment of public propriety
arises from invalid marriage, whether consummated or not,
and from public and notorious concubinage; and it annuls
marriage in the first and second degree of the direct line
between the man and the relations by blood of the woman
and vice versa. Merely civil marriage by itself will not produce
this impediment since it produces no canonical effects. But the
impediment of public propriety will arise from the public and
notorious concubinage which will be associated with merely
civil marriage.
ARTICLE IX
Solemn Vows and Sacred Orders
i. A solemn vow of chastity, taken in a religious order,
strictly so called, or taken implicitly when sacred Orders are
received in the Latin Church, is a diriment impediment of
marriage by ecclesiastical law. This has long been the practice
of the Western Church, and it was solemnly enunciated by
the Council of Trent: " If anyone saith that clerics constituted
in sacred Orders, or regulars who have solemnly professed
chastity, are able to contract marriage, and that being con-
tracted it is valid, notwithstanding the ecclesiastical law or vow ;
and that the contrary is nothing else than to condemn marriage ;
and that all who do not feel that they have the gift of chastity,
even though they have made a vow thereof, may contract
marriage; let him be anathema: seeing that God refuses not
1 Smith, Marriage Process, n. 263.
THE DIRIMENT IMPEDIMENTS 223
that gift to those who ask for it rightly, neither does he suffer
us to be tempted above that which we are able." 1
In the Eastern Church marriage may be contracted before
receiving sacred Orders, and those who have married may use
their marital rights after receiving sacred Orders, but sacred
Orders are a bar to contracting a new marriage. This shows
that sacred Orders, apart from the vow, which in the Latin
Church is taken when they are received, are a diriment im-
pediment of marriage. By a special privilege, the simple
vow of chastity taken by members of the Society of Jesus
at their first profession is also a diriment impediment of
marriage.
2. As this impediment owes its origin to ecclesiastical law,
the Church can dispense in it, but she seldom does so except
for grave reasons which concern the public weal. Leo XIII
granted bishops the faculty of dispensing, by themselves or
through some trusty ecclesiastic, the sick who are in great
danger of death so that there is not time to have recourse to
the Holy See, from all, even public, impediments which
annul marriage by ecclesiastical law, except the priesthood
and affinity in the direct line arising out of the lawful use of
marriage. 2 This was confirmed and extended by Canons 1043,
1044.
ARTICLE X
Difference of Religion
When a man and woman marry, they enter upon the closest
possible union for mutual help and for the rearing and educa-
tion of a family. Religion should be at the base of that union,
and should furnish the fundamental principles for the educa-
tion of their offspring. This, however, is hardly possible if
husband and wife profess different religions, so that the very
nature of marriage excludes difference of religion in husband
and wife. If both the parties are baptized Christians, but
only one is a Catholic, difference of religion is only a prohibitory
impediment ; if one of the parties is not baptized, and the other
has been baptized in the Catholic Church or has been converted
to it, it constitutes a diriment impediment. The first is com-
monly called a mixed marriage, and we will devote to it the
following section.
1 Sess. xxiv, c. 9; can. 1072, 1073.
2 S.O., February 20, 1888.
224 MARRIAGE
SECTION I
Mixed Marriages
1. Mixed marriages are forbidden by the natural, divine,
and ecclesiastical law. For the parties are ministers to each
other of the sacrament of Marriage; but it is unlawful for a
Catholic without grave necessity to communicate in religious
rites with a non- Catholic, and to receive a sacrament from
him. Besides, it usually happens that in marrying a non-
Catholic the Catholic party exposes himself to the danger of
either losing his faith altogether, or at least of suffering its
purity and brightness to be tarnished. The Church has for-
bidden mixed marriages from the earliest ages, and the Popes
and bishops have issued innumerable instructions and warn-
ings against them. It is without doubt a grave sin to contract
a mixed marriage without a dispensation, and the Church
shows her detestation of it by prohibiting any religious function
at the marriage, even when a dispensation for it has been
obtained (Can. 1060, 1102).
2. However, in countries where Catholics and non- Catholics
live together, and especially if the latter greatly outnumber the
former, as they do in Great Britain and in the United States,
it is almost impossible to avoid mixed marriages sometimes,
and the Holy See grants the necessary dispensation. Certain
conditions must be fulfilled before the dispensation for a mixed
marriage is granted. In the first place, there must be a grave
canonical cause, or a good reason such as the Church recognizes
to be sufficient for a dispensation in this matter. In order to
remove as far as possible the danger connected with mixed
marriages, the Church requires that the non- Catholic party
shall promise to leave the Catholic the free exercise of his
religion, and that both parties promise to bring up all the
children in the Catholic faith. Moreover, the Catholic party
must undertake to do his best to bring about the conversion of
his spouse to the Catholic religion. The necessity of these
promises is founded in the natural and divine law, and the
common law of the Church requires that there should be moral
certainty that they will be fulfilled and that as a rule they should
be in writing (Can. 1061).
If one of the parties be a baptized Catholic, but one who
has given up the practice of his religion without going over
to any heretical sect, there is no strict impediment to his
marrying a Catholic, but of course efforts should be made for
THE DIRIMENT IMPEDIMENTS 225
his conversion, and if he remain indifferent the bishop should
be consulted (Can. 1066).
In England, when a dispensation has been obtained for a
mixed marriage, the bishops allow the priest to assist at it
at the altar rails vested in surplice and stole.
The banns should not be published unless the local Ordinary
judge that they may be permitted, taking the necessary pre-
cautions to avoid scandal, and omitting all mention of the
difference of religion (Can. 1026).
A sermon before or after the function is not prohibited.
Mass, however, should never be said nor the nuptial blessing
given at a mixed marriage.
The Church does not allow the Catholic party to go through
any marriage rite before a non- Catholic minister acting as
such. If the non-Catholic minister acts as a civil magistrate,
and Catholics are obliged to go through the marriage ceremony
in his presence in order to have their marriages recognized by
the State, it is permitted (Can. 1063).
SECTION II
Difference of Religion
According to Canon 1070, sec. i, marriage contracted by
a person not baptized with a person baptized in the Catholic
Church or converted to the same from heresy or schism is null.
Sec. 2. If one party at the time of contracting marriage was
commonly regarded as a baptized person, or if his baptism
was doubtful, in accordance with the rule of law that doubtful
marriage is to be deemed valid until the contrary be proved,
such marriages are to be held valid until it is proved for certain
that one of the parties was baptized and the other was not
baptized.
Such a marriage, as is clear from St Paul, 1 has been unlawful
from apostolic times, but in the first centuries of the Christian
era it was not invalid, and there are several well-known in-
stances of saints being married to pagans. Gradually, however,
a marriage between a baptized Christian and a pagan came to
be looked upon as invalid, unless contracted in virtue of the
Church's dispensation, and this has been the settled rule from
about the beginning of the twelfth century. As the impediment
is of positive law it can, of course, for grave reason be dis-
pensed with, and then even the apostolic prohibition will cease
1 a Cor, vi 14.
ii. 15
226 MARRIAGE
if the dangers which are common to mixed marriages and to
difference of religion can be avoided.
Before the new Code came into force the impediment of
difference of religion affected baptized non- Catholics as well
as Catholics. By the common consent of commentators the
effect of Section i is to restrict the impediment to those who
have been baptized in the Catholic Church or converted to it
from heresy or schism. Those are baptized in the Catholic
Church who are baptized with the intention of incorporating
them as members into the bodily communion of the Catholic
Church. So that an infant who in danger of death was secretly
baptized to procure its eternal salvation only, would not be
baptized in the Catholic Church in the sense of this Canon.
ARTICLE XI
Crime
By ecclesiastical law certain crimes committed by married
people which are specially opposed to the sanctity of marriage
constitute a diriment impediment of a second marriage. These
crimes are: adultery together with a promise of marriage or
attempted marriage with the adulterer, murder of a spouse
with the machination of the other party, adultery and murder
of a spouse. In order that these crimes may constitute a
diriment impediment of another marriage, certain conditions
explicitly or implicitly contained in canon law must be fulfilled.
These will be described in the following sections (Can. 1075).
SECTION I
Adultery with Promise of Marriage
i. When husband or wife commits adultery with a third
person and promises to marry that person after the death of
the other spouse, the Church makes the adulterers incapable
of contracting a valid marriage even after the first has been
dissolved by death. The aim of the Church is to protect
married people, to guard the sanctity of marriage, and to
punish crime. A law, however, which restricts the liberty of
marriage must be strictly interpreted, and so Doctors require
the following conditions in the adultery and in the promise
in order that the impediment may arise :
(a) The adultery must be real, formal on both sides, and
complete. It must be real, or one at least of the parties must
THE DIRIMENT IMPEDIMENTS 227
be united in a true, valid marriage. That fact must be known
to both the adulterers, or else they are not guilty of formal
but merely material adultery. If each party knows that the
other is married and the other conditions are verified, there
will be a double impediment between them. The adultery
must be complete, so that it would be possible for it to produce
its natural result in offspring.
(b) The promise, too, must be real, not fictitious, accepted
by the promisee, absolute, not conditional, made with know-
ledge of the present marriage, and undertaking to contract
marriage after the death of the other spouse. For one of the
objects of the law is to remove the temptation to plot against
the life of husband or wife.
Both the adultery and the promise must have place during
the continuance of the same marriage, but it is immaterial
whether the promise be made before, 'after, or at the same time
as the adultery is committed.
2. This impediment of crime also exists between parties
who have committed adultery with each other and attempted
to marry during the lifetime of the spouse of one of them.
The adultery must have the same qualities as in the preceding
case, and the marriage must be really and truly attempted,
not merely feigned. It is immaterial whether the attempted
marriage precede or succeed the adultery. It is obvious that
those will lie under this impediment who, after a civil divorce
from a spouse, marry again and consummate the attempted
marriage.
SECTION II
Murder of a Consort
Murder by a man and a woman of the spouse of one of them
constitutes a diriment impediment to their marriage. This
impediment does not arise unless death really ensues ; attempted
murder is not sufficient. Moreover, the murder must be
committed not by one of them alone, even if the other after-
ward approve of it, but by both, either by mutual physical
help, or by moral persuasion of some sort. Death must also
be inflicted with the intention of marrying the other when free,
as Doctors gather from the end of the law, which is to prevent
murder of a consort with a view to marrying someone else.
This intention must at least be manifested in some way to the
other party, though it is not necessary that it should openly
actuate both of them to the perpetration of the crime.
228 MARRIAGE
SECTION III
Adultery and Murder
1. When a man and a woman commit adultery and one of
them murders his consort in order to marry his accomplice
in adultery, the third impediment of crime arises between them
and hinders the marriage. In this case there need be no
promise of future marriage, nor any attempt at marriage, nor
need the death be the result of the plotting of both of the
parties. It will be sufficient if the adultery have the qualifica-
tions mentioned above in the first section, and murder really
be committed with the intention of marriage manifested in
some way, as by presents or by love letters to the other party.
2. If to adultery and murder as just described there be
joined the promise of future marriage, and the plotting of the
death of the consort of one of the parties with the conditions
laid down in the previous sections, there will be not one but
three impediments, and if marriage were actually attempted
during the murdered consort's life, there will be four. The
impediment is purely of ecclesiastical law, and therefore it
does not bind those who are not baptized. If, however, one
of the parties is baptized, it will indirectly affect the other.
3. Since the issue of the new Code ignorance of this
impediment is no reason why it should not be incurred
(Can. 16).
ARTICLE XII
Error, Slavery, Imbecility
i. By error is understood a mistaken judgement by which
one person or thing is taken for another. It differs from
ignorance, which is merely the absence of knowledge. Error,
if it is substantial, annuls marriage as it does other contracts,
by the law of nature itself. For a contract is not valid unless
there be an agreement of wills between the contracting parties,
and there cannot be that agreement if one of the parties is in
error about the substance of the contract. There will be
such a substantial error when there is a mistake about the
person with whom marriage is contracted. If A thinks he
is marrying B and intends to marry B, the marriage will be
invalid if the other party to the contract is C, not B. Some-
times a mistake about the quality or rank of the other party
may be substantial and invalidate the marriage. Thus, if a
THE DIRIMENT IMPEDIMENTS 229
woman thinks she is marrying the eldest son of a peer, and
only intends to marry the eldest son, who she thinks is present,
the marriage will be null and void if the bridegroom is not the
eldest son of a peer. Ordinarily, however, a mistake about the
quality or condition of the other party will not be substantial,
and will not invalidate the contract. If the lady intends to
marry the person present who she wrongly thinks is the eldest
son, the marriage will be valid. It is possible that there should
be a substantial mistake about the subject-matter of the con-
tract of marriage. Thus, if a woman thinks that marriage
is a mere union of friendship between the parties, and when
she marries does not intend to give her husband any right to
have children by her, the marriage is invalid. Mere ignorance
as to the way in which children are brought into the world does
not invalidate marriage (Can. 1083, 1082).
2. If a freeman married a slave under the mistaken belief
that she was free, the marriage was null and void by ecclesiastical
law; if he married knowing the servile condition of the other
party, the marriage was valid. To this extent the Church
received the Roman legislation on the marriage of slaves,
according to which they could not validly marry one that was
free, and their marriages among themselves were merely at
the good will of their masters. The law of the Church cor-
rected what was inhuman in the Roman civil law, and adopted
its provisions as far as they were in harmony with Christian
principles. Nowadays, of course, this impediment can scarcely
be of practical importance in any part of the world (Can. 1083,
sec. 2, ii).
3. Imbeciles who have not the use of reason are incapable
by the law of nature of contracting a valid marriage, unless it is
contracted in a lucid interval. If the loss of reason supervenes
on marriage which has been validly contracted already, it cannot
of course annul the marriage.
ARTICLE XIII
Violence and Fear
i. Violence is the onset of force too great to be resisted,
and fear is a perturbation of mind arising from present or
future danger. Here we treat of fear caused by extrinsic
violence, inasmuch as it is a diriment impediment of marriage.
When marriage is contracted through grave fear, caused
unjustly by a free agent with a view to extorting marriage,
ecclesiastical law makes it null and void. Whether such
230 MARRIAGE
a marriage is invalid by natural law is a moot point among
Doctors. Fear may, indeed, sometimes be so excessive that
it takes away the use of reason, so that a man under its influence
does not know what he is doing. If a man married under the
influence of such terror, the marriage would of course be
invalid for want of consent. But commonly even grave fear
does not produce such effects ; a man in danger of shipwreck
or death knows as a rule what he is doing, and if he marries
in such circumstances, though induced by fear to do so, the
marriage will be valid. But when he is unjustly forced by
someone to marry against his will, the injury done to him is
a sufficient reason for the Church to make the marriage null
and void, even though he knew what he was doing and con-
sented to the marriage. The only difference between this
case and the former lies in the injury inflicted by the fear
caused by a free agent. This however, does not seem suffi-
cient ground for asserting the nullity of the contract by natural
law, though it affords a just reason why positive law should
make it invalid. The better opinion, then, seems to be that
grave fear is a diriment impediment of marriage by ecclesias-
tical law when the fear is caused unjustly by someone with
a view to compelling the party to marry against his will.
Hence, if one who had violated a woman was threatened with
a beating and married her in order to escape it, the marriage
would be valid. Fear arising from reverence for parents and
superiors is in general not sufficiently serious to make marriage
contracted under its influence null and void. In certain cir-
cumstances, however, such a fear may become grave and suffi-
cient to annul marriage. Much depends on the character of
the party who was influenced by fear and on the means em-
ployed to compel acquiescence to the wishes of harsh and
severe parents or guardians. The question as to whether in
any particular case there was grave fear is a question of fact
to be determined by the ecclesiastical judge after weighing all
the circumstances of the case (Can. 1087).
2. Although marriage has been contracted under the in-
fluence of grave fear sufficient to render it invalid, the marriage
may afterward become valid if fear disappears, and the party
who was under its influence freely cohabits with the other
and expresses matrimonial consent. In this case it will not
be necessary to repeat the external solemnization of the mar-
riage unless the impediment was publicly known. It will be
sufficient if the parties manifest their consent to be man and
wife privately when freed from the influence of grave fear.
THE DIRIMENT IMPEDIMENTS 231
As may be gathered from what has already been said, slight
fear, such as any ordinarily constituted person can despise,
does not invalidate marriage, even when it is caused unjustly
with a view to extort marriage.
ARTICLE XIV
Abduction
The Council of Trent 1 made the following law: " The Holy
Synod ordains that no marriage can subsist between the
abductor and her who is abducted so long as she shall remain
in the power of the abductor. But if she that has been ab-
ducted, being separated from the abductor and being in a safe
and free place, shall consent to have him for her husband,
the abductor may have her for his wife." This decree made
abduction a diriment impediment of marriage, and in keeping
with its tenor the impediment may be defined as the violent
abduction of a woman from a place of safety to another place
where she is detained in the power of the abductor for the
purpose of marriage. In order to constitute the impediment
the abduction must be against the will of the woman, whether
it be effected by open violence, or threats, or fraud ; for if she
freely consent both to the abduction and to marriage, we have
elopement, not abduction. Consent to both abduction and
marriage is required, for the Council made an abducted woman
incapable of contracting a valid marriage, as long as she is in
the power of the abductor. The woman, too, must be the
abducted party ; if a man were forcibly carried off by the orders
of a woman w}io wished to marry him, this impediment would
not arise. It is a disputed point among Doctors as to whether
the impediment would arise if*a man carried off his betrothed
by violence in order to marry her. The better opinion is that
the impediment would hinder the marriage, for although
betrothal gave the man a right to marry the woman at the
proper time, still it gave him no right to use violence for the
purpose.
The words in the definition " from a place of safety" signify
a place where the woman is not in the power of the abductor,
so that to give rise to the impediment the woman must be
taken from one place to another which is morally distinct, and
where she is under the control of the abductor. The forcible
detention of a woman in a place where she is in the man's
1 Sess. xxiv, c. 6, de ref. Matr.
232 MARRIAGE
power but to which she came of her own accord is equivalent
to abduction (Can. 1074, sec. 3). The abductor's aim must
be to contract marriage, not merely to satisfy his lust. .
The impediment is of ecclesiastical law and lasts as long as
the person abducted remains in the power of the abductor,
for, as the Council says, if the woman be restored to her liberty
and then freely chooses to have the abductor for her husband,
the impediment ceases (Can. 1074, sec. 2).
The Council imposed the penalty of excommunication on
the abductor and on all who aid and abet him, besides obliging
him to give the woman a sufficient dower whether he marry
her or not. Other penalties are assigned by Canon 2353.
ARTICLE XV
Clandestinity
i. A clandestine marriage is one that is contracted without
the solemnities which are prescribed by the Church, so that
a civil marriage before the registrar, a marriage in private, and
a marriage before a priest not duly authorized to assist at it,
are all clandestine marriages. Such a marriage always was
and is gravely sinful, because it is forbidden by the Church
on account of the great evils which frequently are the con-
sequence, and because marriage is a sacrament and it should
be received with fitting solemnity in the Church. Moreover,
the Council of Trent by the decree Tametsi 1 made clandestine
marriages invalid in all places where the decree has been
published according to the directions therein laid down. These
will be best set forth in the words of the Council itself. The
Council says :
" And that these so wholesome injunctions may not be
unknown to any, it enjoins on all ordinaries that they as soon
as possible make it their care that this decree be published
and explained to the people in every parish church of their
respective dioceses; and that this be done as often as may be
during the first year, and afterwards as often as they shall judge
it expedient. It ordains, moreover, that this decree shall begin
to be in force in each parish at the expiration of thirty days,
to be counted from the day of its first publication made in the
said parish."
This decree was duly published in the parishes of Catholic
countries like Italy, France, and Spain, and consequently in
1 Sess. xxiv, c. i, de ref. Matr.
THE DIRIMENT IMPEDIMENTS 233
those countries it bound all baptized persons, Protestant as
well as Catholic. In Protestant countries like England, Scot-
land, and Norway it was not published at all, and bound neither
Catholics nor Protestants. In countries like Ireland and
Holland it bound Catholics but not Protestants. In these
latter countries mixed marriages were declared to be exempt
from the decree. This varying discipline led to inextricable
confusion, and more marriages were invalid on account of
clandestinity than from any other cause. To remedy these
evils the Sacred Congregation of the Council issued its decree
Ne temere on August 2, 1907, and it began to have the force
of law for Catholics in the Western Church on Easter Sunday,
April 19, 1908. With a few changes the Code has adopted
the provisions of the Ne temere decree, and so now the impedi-
ment of clandestinity may be described as follows :
Only those marriages are valid which are contracted before
the parish priest of the place or the local Ordinary or a priest
delegated by either of them and at least two witnesses.
The parish priest and the Ordinary of the place validly assist
at a marriage :
(a) Only from the day of taking canonical possession of their
benefice or entering upon their office, unless by sentence they
have been excommunicated, interdicted, or suspended from
office, or declared to be such.
(b) Only within the limits of their territory; and within the
limits of their territory they assist validly not only at the
marriages of their subjects, but also of such as are not their
subjects.
(c) Provided that not being compelled by violence or grave
fear they demand and receive the consent of the contracting
parties.
The parish priest and the local Ordinary who can validly
assist at a marriage can also grant leave to another priest so
that within the limits of their own territory he may validly assist
at the marriage (Can. 1094, 1095).
This leave to assist at a marriage ought to be given expressly
to a particular priest for a particular marriage, otherwise it
is invalid; so that all general delegations are excluded, unless
there is question of curates (vicarii cooperatores) for the parish
which they serve.
The parish priest or the local Ordinary should not grant
this leave unless everything has been done which the law
requires for the proof of the freedom of the parties to marry
(Can. 1096).
234 MARRIAGE
Moreover, the parish priest or the local Ordinary assist
lawfully at a marriage:
(a) When they are satisfied according to law as to the freedom
of the parties to marry.
(b) When, moreover, they are satisfied as to the domicile
or quasi- domicile or of a month's stay, or, if there is question
of a homeless person, of the actual staying of one of the con-
tracting parties in the place of marriage.
(c) If the conditions just mentioned be wanting, the priest
must have the leave of the parish priest or of the local Ordinary
of the domicile or quasi- domicile or month's stay of one of the
contracting parties, unless there is question of homeless persons
who are moving about and staying nowhere, or there is a grave
necessity which excuses from asking leave.
In all cases let it be the rule that marriage be celebrated
before the parish priest of the bride unless there be some good
reason to the contrary.
A parish priest who assists at a marriage without the required
leave has no right to the stole fee, and he should send it to the
proper parish priest of the contracting parties (Can. 1097).
If a parish priest or a local Ordinary or a priest delegated
by one of them cannot be had or approached without serious
inconvenience to assist at marriage :
(a) In danger of death marriage contracted before witnesses
alone is valid and lawful ; and also at other times provided that
a prudent judgement be formed that the same state of things
will last for a month.
(b) In both cases if there is another priest who can assist
he ought to be called and assist at the marriage, but if this is
not done the marriage before witnesses alone is valid (Can. 1098).
All who have been baptized in the Catholic Church are
bound to observe this form of marriage, as well as all converts
to it from heresy or schism; even though they afterwards fall
away from it. All these are bound to observe the form laid
down even when they contract marriage with non- Catholics,
or with Catholics of the Oriental rites. But non- Catholics,
whether baptized or not, are nowhere bound to observe it
when they marry among themselves, nor are those born of
non- Catholic parents but baptized in the Catholic Church,
who from, the age of infancy have grown up in heresy, schism,
or infidelity, or without any religion at all, when they contract
marriage with a non- Catholic (Can. 1099).
Canon 1103 prescribes that when marriage has been cele-
brated the parish priest or one who takes his place should
THE DIRIMENT IMPEDIMENTS 235
enter the marriage in the Marriage book as soon as possible.
He should also make the proper entry in the Baptism book if
either or both of the parties were baptized in his parish, other-
wise he must send notice of the marriage to the parish priest
of Baptism in order that he may make the entry in the Baptism
book.
When marriage has been contracted in case of necessity
without the presence of the parish priest or his delegate, if
another priest was present, he and the witnesses are jointly
and severally bound with the contracting parties to see that
the entries of the marriage are made in the proper books as
soon as possible.
CHAPTER XI
DOUBTFUL IMPEDIMENTS
i. WHEN there is a doubt as to the existence of a diriment
impediment which annuls marriage by natural or divine law,
marriage must not be contracted, for as there would always
be a doubt as to whether it was valid, the parties would be
exposed to the continual danger of sinning against the natural
law. Theologians make an exception to this general rule in
favour of those who labour under probable impotence, for
these may marry on account of the strong presumption that
all men are potent unless the contrary is certain, and because
it would be an intolerable hardship to prohibit a person from
marrying because of such a doubt (Can. 1068, sec. 2). In the
case of a doubtful impediment of positive law, we must dis-
tinguish between a doubt of law and a doubt of fact. When
there is a doubt whether the positive law extends to the particular
case, as whether spiritual relationship arises between the sponsors
in a private Baptism and the child, the impediment practically
does not exist, as the law is of strict interpretation and the
Church dispenses as far as is necessary in such a case of doubt.
When the doubt is about a fact, as whether the parties are
related within the prohibited degrees of kindred, the Church
does not supply if the impediment really exists, and a dispensa-
tion should be asked for to make sure. The Bishop has power
to dispense in such cases of doubt (Can. 15).
When marriage is contracted with a supposed impediment
which in reality does not exist, the marriage will of course be
null and void if the parties thought that it was altogether
impossible, and merely intended to go through the external
form. On the other hand, it would seem to be valid if they
intended to marry as far as they could, though they were afraid
they could not do so. And so if one whose consort has been
absent for a long time and who is not known to be dead, as in
fact he is, marries again, giving her consent to the marriage
as far as possible, it would seem that the marriage is valid
though unlawful.
2. When a marriage has been contracted and a doubt sub-
sequently arises as to the validity on account of the probable
236
DOUBTFUL IMPEDIMENTS 237
existence of a diriment impediment, inquiry must be made
with a view to settling the doubt, and in the meanwhile the
party in doubt must abstain from asking for the marriage debt,
though he is not precluded from rendering it to a consort who
asks for it in good faith without any suspicion about the validity
of the marriage. If the doubt still remains after ordinary
diligence has been used in making inquiries, the doubt may
be put aside, and the marriage may be presumed to be valid.
The rules of law may be applied to such a case, " In doubt
we must presume the validity of the act," and " In doubt the
condition of him who is in possession is the stronger." These
rules apply with all the greater force inasmuch as marriage is
favoured, and the decision must always be given in its favour
in case of doubt (Can. 1014).
If it becomes certain that a marriage which has been con-
tracted is invalid by reason of a dirinjent impediment existing
between the parties, and the invalidity is publicly known, the
parties must separate. Otherwise there would be danger of
sin and public scandal. If the impediment is secret and the
parties are in good faith without any knowledge of its existence,
they should be left in their ignorance until a dispensation from
the impediment has been obtained. The dispensation should
be executed in one of the ways to be described in a subsequent
chapter.
If the parties know of the existence of the impediment and
of the consequent nullity of their marriage, they must separate,
at least from bed, until a dispensation can be procured.
Whether they can be permitted to live together as brother
and sister in the same house depends on whether they can
thus avoid all proximate occasion of sin. If they cannot, some
excuse to avoid scandal and awaking suspicion must be found
for a temporary separation.
CHAPTER XII
DISPENSATIONS FROM DIRIMENT IMPEDIMENTS
i. THE Church cannot grant a dispensation from those im-
pediments which belong to the natural and divine law. She
cannot, for example, allow a Christian to marry again while
a former wife is still alive, nor dispense in a case of certain
impotence. Although she can dispense in all impediments
which have their origin in ecclesiastical law, yet as a matter
of fact she but seldom does so in some of them, such as the
priesthood, and affinity in the first degree arising from con-
summated marriage. The Council of Trent decreed univer-
sally that " as regards marriages to be contracted, either no
dispensation at all shall be granted, or rarely, and then for a
cause, and gratuitously.". 1 Still, according to modern dis-
cipline it is not uncommon for dispensations to be granted
in the more remote degrees of consanguinity and affinity, in
spiritual relationship, in occult crime, and in some other
impediments.
2. As the diriment impediments of marriage belong to the
common law of the Church, per se only the Holy See can law-
fully dispense in them.
However, in certain cases, whether by law or by special
indult, bishops and others have power to dispense.
(a) A bishop can dispense a doubtful impediment when the
doubt is about a fact (Can. 15).
(b) In pressing danger of death, local Ordinaries, to appease
conscience, and, if the case admit of it, for the legitimation of
offspring, can dispense both in the form to be observed in
the celebration of marriage, and in each arid all impediments
of ecclesiastical law, whether public or occult, even though
they are manifold, except the impediments arising from the
sacred order of priesthood, and of affinity in the direct line when
marriage has been consummated (they can dispense) their own
subjects wherever they be, and all who are actually staying
in their territory, but scandal must be avoided, and if the
dispensation is granted for difference of religion or for a mixed
marriage, the usual promises must be given (Can. 1043).
1 Sess. xxiv, c. 5, de ref. Matr.
238
DISPENSATIONS FROM DIRIMENT IMPEDIMENTS 239
(c) In the same circumstances, and only for cases in which not
even the local Ordinary can be approached, both the parish
priest has the same power of dispensing, and the priest who
assists at marriage contracted in danger of death in accordance
with Canon 1098, n. 2, and a confessor, but the latter for the
internal forum in the act of sacramental confession only
(Can. 1044).
(d) Subject to the clauses laid down at the end of Canon 1043,
local Ordinaries can dispense in all the impediments mentioned
in that same canon, whenever the impediment is discovered
when everything is ready for the marriage, and without probable
danger of grave harm the marriage cannot be put off until a
dispensation is obtained from the Holy See (Can. 1045).
(e) This same faculty avails also for the convalidation of
marriage already contracted, if there is the same danger in
delay, and there is no time to have recourse to the Holy See
(ibid., sec. 2).
(/) In the same circumstances, the parish priest and other
priests mentioned in Canon 1044 have the same faculty, but
only for occult cases in which not even the local Ordinary can
be approached or not without danger of violating the seal of
confession (ibid., sec. 3).
The parish priest or the priest mentioned in Canon 1044
should at once notify the local Ordinary of the dispensation
granted for the external forum; and enter it in the book of
marriages (Can. 1046).
The above special faculties for particular cases are granted
by law ; sometimes Bishops receive other faculties for granting
dispensations by indult from the Holy See. The Code lays
down the following rules which govern the exercise of such
faculties :
In marriages already contracted or to be contracted, he who
has a general indult for dispensing in a certain impediment
can dispense in it even though it is manifold, unless the indult
expressly prescribes otherwise (Can. 1049, sec. i).
One who has a general indult for dispensing in several
impediments of different kinds, whether diriment or prohibi-
tory, can dispense in those same impediments even if they are
public, when they occur in one and the same case (ibid., sec. 2).
If ever together with a public impediment or impediments,
in which one can dispense by indult, there is another impedi-
ment in which he cannot dispense, the Holy See ought to be
approached for all of them ; but he can use his faculties if the
impediment or impediments in which he can dispense are
240 MARRIAGE
discovered after a dispensation has been asked for from the
Holy See (Can. 1050).
By a dispensation in a diriment impediment granted either
by ordinary authority or by authority delegated by general
indult, but not by rescript in particular cases, legitimation of
offspring is thereby also granted if any was born or conceived
of those who were dispensed, with the exception of adulterous
or sacrilegious offspring (Can. 1051).
A dispensation from an impediment of consanguinity or
affinity granted in any degree of the impediment is valid not-
withstanding a mistake about the degree in the petition or in
the grant, provided that the true degree is lower, or although
another impediment of the same kind in an equal or lower
degree was not mentioned (Can. 1052).
A dispensation granted from a minor impediment is annulled
by no defect of obreption or subreption, although the only
motive cause mentioned in the petition was false (Can. 1054).
The impediments of minor degree are :
(a) Consanguinity in the third degree of the collateral line.
(b) Affinity in the second degree of the collateral line.
(c) Public propriety in the second degree.
(d) Spiritual relationship.
(e) Crime arising from adultery with a promise of marriage,
or with attempted marriage even though it be only civil. All
the other impediments are of greater degree (Can. 1042).
The Pope grants matrimonial dispensations through various
Roman Congregations. The Congregation of the Holy Office
grants dispensations in mixed marriages and in the impediment
of difference of religion. The Congregation on the Discipline
of the Sacraments grants dispensations from public impedi-
ments and for the external forum. The Sacred Penitentiary
grants dispensations only for the internal forum. If a case
occur in which there is both a public and an occult impedi-
ment, the petition for dispensation from the public impediment
should be sent to the Sacred Congregation on the Discipline
of the Sacraments in the ordinary way, and another petition
without mentioning the real names of the parties should be
sent to the Sacred Penitentiary, mentioning the public im-
pediment in the case as well as the occult.
Dispensations are granted gratuitously by the Sacred Peni-
tentiary, but for dispensations from public impediments granted
by the Roman Congregations besides the expenses of agency
a small tax is imposed on those who can afford to pay. This
is lowered or altogether remitted in favour of the poor.
DISPENSATIONS FROM DIRIMENT IMPEDIMENTS 241
3. Matrimonial dispensations cannot be granted lawfully
even by the Pope without good cause. A cause is motive
or final when it is ordinarily deemed sufficient for granting
a dispensation; when it only induces the superior to grant a
dispensation more readily, it is said to be impulsive. When
the petition for a dispensation omits to mention what should
be mentioned, it has the defect of subreption; when it alleges
what is false, there is obreption. When subreption or obreption
occurs in the motive cause, the dispensation from the impedi-
ments of greater degree, not from those of minor degree, is
invalid at least if the cause alleged was the sole cause, and even
if it was not the validity of the dispensation is doubtful. Sup-
reption or obreption in an impulsive cause does not affect the
validity of the dispensation. In doubt as to whether a cause
falsely alleged for a dispensation was motive or impulsive, the
presumption will be in favour of the validity of the dispensation,
In dubio standum est pro valore actus. If the motive for granting
a dispensation from an impediment of greater degree ceases
before the dispensation is executed, the dispensation will lapse;
if, however, the motive cause ceases to exist after the dispensa-
tion has been executed, though before the marriage has been
contracted, the impediment has been removed, and the parties
may marry.
Propaganda, May 9, 1877, issued an instruction on matri-
monial dispensations, which sets forth and explains the ordi-
nary canonical causes which are accepted as sufficient for
granting a dispensation. The same causes, however, are not
sufficient for a dispensation from all impediments, and the
party interested should put down in his petition all the grounds
that he can find for granting the favour he requests. We
cannot do better than give here the chief portion of this im-
portant document in Fr. Guy's translation:
" (i) Smallness of the place, either absolute or relative (as
regards the female petitioner alone), seeing that in the place
of her birth or even domicile a woman's relationship is so
widely spread that she is unable to meet with anyone to be
married to of an equal position with her own, save a relative
by blood or by marriage, without leaving her country, which
would be a hardship to her.
" (2) The advancing age of the woman. If, for instance, she
is over twenty-four and has not hitherto met with one of
her own position to whom she might be married. But this
reason does not hold good in the case of a widow wishing to
marry again.
IT, 16
243 MARRIAGE
Deficiency or absence of dowry. If a woman has not
actually a dowry large enough to enable her to marry another
of her own position, unconnected by blood or marriage, in
her own place of abode. And this reason becomes all the more
weighty when the woman has no dowry at all and a relation
by blood or by marriage is willing to marry her, or even to
make a suitable settlement upon her.
" (4) Contentions about inheritance that have already arisen
or serious or imminent danger of the same. If a woman has
on hand an important suit in reference to her inheriting wealth
of great amount, and there is no one else to undertake a con-
tention of this kind and carry it on at his own expense save
the person who is desirous of marrying her, a dispensation is
usually granted, for it is of benefit to the community at large
that an enpt should be put to the contention. A reason of this
nature, however, suffices only in cases of remote grades of
relationship.
" (5) Poverty on the part of a widow with a numerous
family which some man promises to support. But at times
a widow obtains the benefit of a dispensation owing to her
youth and the danger of incontinence.
" (6) The blessing of peace; and under this head come not
only treaties between realms and princes, but the cessation
of serious enmities, disturbances, and ill-will between citizens.
" (7) Too great, suspicious, or dangerous familiarity, as well
as having, almost unavoidably, to dwell together under the
same roof.
" (8) Previous connection with a relation by blood or by
marriage, or with any other party under an impediment, and
pregnancy, with consequent legitimization of the offspring, in
order to provide for the well-being of the offspring and the
good name of the mother, who would otherwise remain un-
married.
" (9) Disgrace coming upon the woman arising from a
suspicion that through over-familiarity with a relative or con-
nection she had been seduced by him, although the suspicion
should be false, in a case when unless she marries, a woman
seriously defamed would either remain unmarried, or must
marry beneath her, or serious loss would ensue.
" (10) Revalidating a marriage which has been contracted
in good faith, and publicly in the way prescribed by the Council
of Trent, because its dissolution could hardly be brought
about without grave public scandal and heavy loss, especially
on the woman's part. But if the parties have got married in
DISPENSATIONS FROM DIRIMENT IMPEDIMENTS 243
bad faith, they by no means deserve the favour of a dispensa-
tion as the Council of Trent decides.
" (u) Danger of a mixed marriage, or of its being cele-
brated before a non- Catholic minister. When there is danger
of those wishful of being married, though connected in one of
the closer degrees, going before a non- Catholic minister for
the marriage in defiance of the authority of the Church, by
reason of the refusal of a dispensation, there are just grounds
for dispensing; for there is imminent danger not only of a
most serious scandal to the faithful, but also of apostasy and
loss of faith on the part of those so doing and disregarding the
impediment to matrimony, especially in countries where heresy
flourishes unchecked. The same must be said in the case of
a Catholic woman who ventures upon marriage with a non-
Catholic man.
" (12) Danger of incestuous concubinage.
" (13) Danger of a civil marriage. From what has been
said, it follows that probable danger of those who are petition-
ing for the dispensation having only a civil marriage, as it is
called, if they cannot get the dispensation, is a lawful reason
for dispensing.
" (14) The removal of grave scandal.
" (15) Putting a stop to open concubinage.
" (16) Merit, that is in the case of one who has by resisting
the enemies of the Catholic faith, or by generosity toward
the Church, or by his learning, virtue, or some other means,
deserved well of religion.
" Such are the more common and strong grounds which are
usually brought forward when matrimonial dispensations are
to be petitioned for; and theologians and canonists treat of
them exhaustively.
" But this instruction now turns to those points which, in
addition to the grounds for obtaining the dispensation, must,
whether by law, custom, or the practice of the curia, be ex-
pressed in the petition, or the dispensation becomes null if
the truth be kept back or what is untrue is advanced even in
ignorance. These are:
" (i) The name and surname of the petitioners must both be
written down distinctly and clearly, without any abbreviation.
" (2) The diocese of birth or of actual domicile. When
petitioners have a domicile out of the diocese of their birth
they can ask, if they please, that the dispensation should be
sent to the Ordinary of the diocese in which they are actually
residing.
244 MARRIAGE
" (3) The species (in its most determinate form) of the im-
pediment, whether it is consanguinity or affinity, public
morality (honestas); in the case of an impediment by reason
of crime, whether it arose from murder of the party's spouse
with the promise of marriage, or from such murder with
adultery, or from adultery alone with the promise of marriage.
" (4) The degree of consanguinity or affinity or morality
(honestas) arising from a marriage ceremony, and whether it
is a simple or mixed degree, the more remote as well as the
less, together with the line, and whether it is direct or col-
lateral; likewise, whether the petitioners are related by a
double tie of consanguinity, both on the father's and mother's
side.
" (5) The number of impediments; for instance, is the con-
sanguinity or affinity twofold or manifold; or is there affinity
as well as relationship ; or any other kind of impediment, diri-
ment or prohibitory ?
" (6) Various circumstances, such as whether the marriage
is to be or has been contracted ; if contracted, it must be stated
whether this was done in good faith at least on one side, or
with a knowledge of the impediment ; likewise, whether it was
after proclamation of banns and in accordance with the pre-
scriptions of the Council of Trent, or whether with the view
of more easily obtaining a dispensation ; finally, whether it has
been consummated, if in bad faith, at least on one side, or
with knowledge of the impediment." 1
The instruction required that mention be made of incest,
if this crime had been committed between the parties who
asked for the dispensation, but this obligation was abolished
by a decree of the Holy Office, June 25, 1885.
If a mistake occurs in the names of the petitioners, or of the
diocese or parish, it does not invalidate the dispensation,
provided that in the judgement of the Ordinary there is no
doubt about the truth of the matter (Can. 47).
If a lower degree is put for a higher, the mistake invalidates
the dispensation as a rule, otherwise if a higher or equal degree
is put for a lower (Can. 1052).
4. As a rule the Holy See grants dispensations in forma
commissoria. When the impediment is occult the commission
to dispense the party labouring under the impediment is issued
to the confessor. It will therefore be the confessor's duty to
verify the allegations as far as possible and faithfully to observe
all the conditions laid down in the papal rescript. The ob-
1 Synods in English) p. 78.
DISPENSATIONS FROM DIRIMENT IMPEDIMENTS 245
servance of the conditions expressed by such terms as, provided
that, if, or the ablative absolute, is necessary for the validity
of the dispensation. Besides the conditions, certain things
are also prescribed, such as the destruction of the rescript
after it has been executed; but these matters do not affect
the validity of the dispensation. One of the usual conditions
is previous sacramental confession, which requires the hearing
of the confession of the party, but not necessarily his absolu-
tion. If this clause is not in the rescript, it may be executed
outside the confessional. No special form is prescribed for
granting the dispensation, which may be done by word of
mouth.
Notice of the dispensation if it was given for the internal
but non-sacramental forum should be entered in the secret
book (Can. 1047). ;
When the impediment is public the commission is issued
to the Ordinary of the parties or to the Ordinary of the place
where they live. After the Ordinary has received the rescript
he may delegate the verification of the clauses to the parish
priest of the parties, and after this has been done he may grant
the dispensation according to the terms of the rescript, and
on being signed by the Ordinary the dispensation will at once
take its effect. The document or a copy of it should be sent
to the parish priest, who will inform the parties that the dis-
pensation has been duly granted (cf. Can. 1055, 1046, 1047,
1057).
When the bishop is able to grant the necessary dispensation,
he ordinarily does so in forma gratiosa. This signifies that
on receipt of the petition and having satisfied himself of the
truth of the allegations contained in it, he grants the dispensa-
tion forthwith by signing a document drawn up in due form,
and sends it to the parish priest, who will inform the parties
of the terms on which it has been granted.
CHAPTER XIII
REVALIDATION OF MARRIAGE
i. WHEN marriage has been contracted invalidly the ordinary
thing to do is to secure its being contracted validly, if this is
possible. It may have been invalid on account of clandestinity,
or for want of consent, or because there was some diriment
impediment between the parties.
When the marriage was invalid on account of clandestinity,
it must be revalidated by supplying the defect and contracting
marriage anew before the parish priest and two witnesses.
If the invalidity of the first marriage was known publicly, the
second must be publicly solemnized; otherwise it will be
sufficient to contract it in private (Can. 1137).
2. When the first marriage was invalid for want of consent
of both the contracting parties, the only way of revalidating
it is by both renewing their consent. This, again, should be
done publicly if the invalidity of the former marriage was
matter of public knowledge ; in other cases it will be sufficient
to renew consent in private. When the former marriage was
invalid for want of consent of only one of the parties, it will
be sufficient if this party after becoming acquainted with its
invalidity freely renews his consent if the consent of the other
party still persists. This may be done validly not only by
express word of mouth, but by living together as man and
wife, and exhibiting the ordinary signs of matrimonial union
(Can. 1136).
3. When the first marriage was invalid on account of some
diriment impediment between the parties, the first thing to
do is to remove the obstacle to marriage by obtaining a dis-
pensation from the impediment and duly executing it. If
both the parties were aware of the impediment, they must
renew their consent either in public or in private, according
as the nullity of the marriage was publicly known or not
(Can. lift).
This renewal of consent is a new act of the will consenting
to the marriage, with knowledge of its previous invalidity, and
is necessary for validity by ecclesiastical law (Can. 1133,
34)
246
REVALIDATION OF MARRIAGE 247
If the impediment is occult and not known to one of the
parties, it is sufficient for the party who knows of the impedi-
ment to renew his consent privately and in secret, provided
that the consent given by the other party still persists (Can.
1135, sec. 3).
Sometimes not even this can be done, and in such cases of
special difficulty recourse may be had to a dispensation in radice,
as it is called, by which the Holy See sometimes revalidates a
marriage without any renewal of consent by the parties. By a
dispensation in radice the diriment impediment which existed
is removed, the marriage is validly contracted by the consent
which was given in the former marriage and which still sub-
sists, and the children, if any have been born, are legitimized
as if the former marriage had been valid. By a fiction of law,
the former marriage is held to be valid and to have all the
effects of a valid marriage. '
It is obvious that to enable the Church to do this the impedi-
ment must be merely of ecclesiastical origin, and so capable
of being removed by the Church; the consent given in the
former marriage must of itself be valid and capable of effecting
a real marriage except for the impediment, and, moreover,
the consent of the parties must still persist at the time when
the dispensation is given, otherwise true marriage can never
exist between the parties. If these conditions are fulfilled by
a dispensation in radice without any renewal of consent, the
parties will be truly married, and the effects of marriage will
date from the first contract, though it was invalid (Can. 1138-
1141).
CHAPTER XIV
DE DEBITO CONJUGALI
i. VERBA S Pauli prooemii locum teneant nobis hanc foedam
materiam breviter tractaturis: " Uxori," inquit Apostolus,
" vir debitum reddat, similiter autem et uxor viro. Mulier
sui corporis potestatem non habet, sed vir; similiter autem
et vir sui corporis potestatem non habet, sed mulier. Nolite
fraudare invicem, nisi forte ex consensu ad tempus, ut vacetis
orationi; et iterum revertimini in idipsum, ne tentet vos
Satanas propter incontinentiam vestram." 1
Proinde non tantum licitus est usus conjugii sed alteri parti
serio et rationabiliter petenti est ex justitia debitum sub gravi
reddendum.
Quod quamvis sit certissimum admittuntur tamen causae
excusantes ab hac obligatione, ita ut nulla sit obligatio red-
dendi debitum quando reddi non possit sine periculo vitae,
morbi gravis, vel quando non rationabiliter petatur, ut ab
amente aut ebrio, vel petatur nimis frequenter, ut si pluries
in eadem nocte. Etiam semi-ebrio petenti videtur licitum,
praesertim propter periculum gravium defectuum turn cor-
poralium turn moralium in prole forte gignenda, debitum
denegare nisi propterea timeantur rixae, discordiae, et incon-
tinentia ex parte petentis.
Dictum est in his circumstantiis nullam adesse obligationem
debitum reddendi, imo per se illicitum esset debitum reddere
cum proximo periculo vitae vel sanitatis. Attamen si morbus
esset diuturnus nee proxime tendens ad mortem, qualis est
syphilis, permittitur sano debitum reddere cum periculo
infectionis ad incontinentiam vitandam vel ad amorem con-
jugalem fovendum. Major difficultas habetur quando judicio
medici proles gignenda morti esset matri. Tales vero casus
non sunt facile admittendi, et quidem medici judicium de
periculo vitae facilius pronunciant eo quod mulieres illud
aucupantes videant. Nisi igitur casus sit omnino specialis,
tuto confessarius consilium mulieri tale judicium medici
alleganti dabit ut viro placere studeat ac cum magna fiducia
Deo se committat.
1 i Cor. vii 3-5.
248
DE DEBITO CONJUGALI 249
Quum conjuges sibi invicem debitum reddere teneantur,
patet eos ad simul cohabitandum regulariter etiam teneri, nisi
quando necessitas id non patitur vel quando ex mutuo con-
sensu sine periculo incontinentiae et sine scandalo aliter fit.
Conjugibus senibus vel debilibus qui saepius copulam
nonnisi imperfecte exercent non est denegandus usus matri-
monii dummodo aliqua sit spes eos posse rite actum
perficere.
2. Quid liceat quid non liceat conjugibus sequent! regula
generali continetur: Quod utile est ad actum conjugalem
exercendum licet; quod est contra prolis generationem vel
tendit ad illam impediendam est graviter illicitum; quod non
est contra prolis generationem, quamvis sit praeter illam,
saltern non est graviter illicitum.
Unde resolves : Licet conjugi tactibus et aspectibus im-
pudicis sese ad copulam excitare, et'post vir se retractavit licet
uxori tactibus se excitare ad delectationem veneream com-
pletam. Copula sodomitica et copula incoepta sed abrupta
cum effusione seminis extra vas mulieris graviter illicita est.
Si autem experientia constat conjugibus se posse sine proximo
periculo pollutionis copulam incoeptam abrumpere, non videtur
hoc esse mortale si uterque consentiat. A fortiori alii tactus
et aspectus turpes sine proximo periculo pollutionis a con-
jugibus admissi non videntur mortalia, et ab omni peccato
excusantur si ex justa causa exercentur, ut ad affectum con-
jugalem fovendum.
3. Peccatum grave contra naturam et finem matrimonii
committit vir qui copula imperfecta sese voluntarie ab uxore
retrahit et extra vas seminat. Ex facto Onan vocatur peccatum
onanismus. 1
Constat autem esse peccatum grave ex Sacra Scriptura ex
eo quod frustratur finem principalem matrimonii, et tendit
in ruinam generis humani. Constat etiam ex pluribus respon-
sis SS Congregationum. Moraliter nil refert quo medio
peccatum hoc frustratae naturae committatur, sive instrumento
quodam, sive involucro, sive lotione vasis mulieris post copulam,
sive mere retractione viri ante seminationem. Si mutuo con-
silio et consensu conjugum tale quid fiat uterque graviter
peccat.
Si tamen actus viri onanisticus uxori displiceat, quae etiam
eum inducere ad rem honeste perficiendam frustra tentavit,
haec non videtur prohibenda quominus debitum viro petenti
reddat vel etiam ex gravi causa postulet. Ipsa enim materialiter
1 Gen. xxxviii 9.
MARRIAGE
tantum cum peccato viri cooperatur, quae cooperatio ex gravi
causa est licita. Habetur vero gravis causa turn ex parte viri
ne offendatur, turn ex parte uxoris quae cum periculo incon-
tinentiae non est privanda juribus suis maritalibus. Licet
igitur mulieri etiamsi vir onanistice agat, veneree delectari in
usu matrimonii, imo licet ei postquam vir sese retractavit
excitare sese tactibus ad completam satisfactionem si hanc
nondum sit experta.
Confessarii regulariter conjuges interrogare non debent de
modo quo jura maritalia exerceant. Si tamen conjux dubia
proponat de liceitate onanismi confessarius doctrinam Catho-
licam breviter ei declarare debet. Imo si suspicionem funda-
tam habet conjuges sive bona sive mala fide onanistice agere
eos monere debet, cum de gravi peccato valde nocivo ipsis
conjugibus et societati humanae agatur. Conjux qui doctrinae
Catholicae de hac re acquiescere nolit per se absolutionis est
incapax.
4. Dummodo copula rite perfici possit nullus situs in ea
exercenda graviter est illicitus, et situs non naturalis cohonestatur
ita ut ne venialiter quidem sit illicitus dummodo justa aliqua
causa habeatur.
Vetere lege accessus ad uxorem prohibebatur menstruorum
et purgationis tempore, .imo antiqua lege ecclesiastica similis
vigebat prohibitio. Videtur dicendum illas leges esse positivas
nee amplius Christianos obligare. Variae sunt Doctorum
sententiae circa liceitatem talis accessus. Rationes quas
afferebant plures ut actus illiceitatem demonstrarent fabulis
nitebantur, attamen scientia physiologica comprobat sententiam
juxta quam ob statum nerveum mulieris menstruorum et
purgationis tempore sub veniali saltern est viro abstinendum
nisi justa causa excusat. Idem dicendum videtur de tempore
praegnationis, imo si esset copula periculo proximo abortus
sub gravi tune esset abstinendum. Vix tamen constare
potest de tali periculo unde obligatio abstinendi urgeri non
valet.
Probabilis videtur sententia plurium juxta quam tactus
impudici quos conjux secum exercet altera parte absente dum-
modo nullum sit periculum proximum pollutionis non sunt
peccata mortalia. Ipse status matrimonialis, aiunt, reddit tales
actus minus indecentes, ita ut quod apud solutos sit grave,
apud conjugates sit tantum veniale.
Nee delectatio morosa de copula habita vel habenda, secluso
iterum periculo proximo pollutionis, videtur sub gravi con-
jugibus prohibita. Imo delectatio mere rationalis de objecto
DE DEBITO CONJUGALI 251
licito, qualis est copula conjugibus, ne veniale quidem esset;
attamen practice delectatio de actu conjugal! vix mere rationalis
esse poterit, quatenus naturaliter excitat sensus et membra.
Unde delectatio morosa de copula habita vel habenda sub
veniali saltern regulariter etiam conjugibus prohibetur.
Copulam cum conjuge exercere cum mente adulterina,
cogitando de alia persona praeter conjugem, grave est peccatum
propter mentem adulterinam.
BOOK X
CENSURES
PART I
CENSURES IN GENERAL
CHAPTER I
THE NATURE OF AN ECCLESIASTICAL CENSURE
i. WE here understand by a censure a spiritual and remedial
penalty by which a baptized and contumacious delinquent is
deprived by ecclesiastical authority of the use of certain spiritual
advantages. It differs from other penalties, such as degrada-
tion, which are also spiritual and inflicted by the Church, in
that a censure has in view the correction and amendment of
the delinquent, while other penalties have chiefly in view the
common good to be procured by the punishment and repression
of crime. The Church has jurisdiction only over those who
are baptized, and she punishes by censures only those of her
children who have done wrong with their eyes open, with
knowledge of the wrongfulness of their action and of the spiri-
tual censure by which the Church punishes it.
A censure does not and cannot deprive a man of all the
spiritual advantages which he may possess. There are some
spiritual gifts in man's possession which depend only on his
personal relations with God, such as sanctifying grace, and
the supernatural virtues and gifts which accompany it. These
may adorn the soul of one who is not baptized, and they are
not possessed by all members of the Church. There are, how-
ever, other spiritual privileges which a Christian enjoys through
membership with the Church of God. Among these theo-
logians distinguish those that are internal, external, and mixed.
Internal comprise the special providence and helps which God
grants to the members of his Church because they belong to
his Spouse who is continually interceding for them. External
are the society and special charity which binds the members
of the Church to each other. Mixed are the participation in
the same sacraments and sacrifice, the common suffrages,
253
354 CENSURES
satisfactions, and indulgences, which the children of the
Church in communion with her enjoy. According to the
common opinion, excommunication deprives the delinquent
of all these privileges, it puts him outside the communion of
the faithful, and consequently leaves 'him without the benefits
of union. The other two censures, suspension and interdict,
deprive him at least of some of those benefits, as of their nature
they are limited in their effect. There are, however, some
theologians who with Suarez deny that a censure deprives a
man of the merely internal advantages which membership with
the Church confers.
2. With reference to the effects produced by them, censures
are of three kinds: excommunication, suspension, and inter-
dict. With reference to the manner in which they are in-
flicted, they are said to be a jure, or ab homine. The former
are imposed by a stable and permanent law, the latter by way
of particular precept or sentence. Sometimes a censure is
incurred by the very fact of committing a crime, without any
declaratory sentence of a judge; it is then said to be latae
sententiae. Sometimes it needs the intervention of a judge,
and is said to beferendae sententiae.
3. Certain conditions must be fulfilled in order that a censure
may be incurred :
(a) As it is a serious penalty, and a serious penalty can
only be inflicted for a grave fault, a censure can only be in-
curred by one who has committed a mortal sin.
(b) The Church does not judge of what is merely internal,
and so the fault which is punished by censure must be grave
externally as well as internally. A slight blow given to a cleric,
which does not constitute a serious injury, does not involve ex-
communication incurred by those who violate the privilege of the
canon, even though the act were accompanied with mortal hatred.
(c) Penalties must be interpreted strictly, and therefore the
crime which is punished by censures must be completed, not
merely attempted.
(d) Inasmuch as a censure is remedial and inflicted on the
delinquent for his correction and amendment, it cannot be
incurred for a crime which is altogether past, and which has
left no traces behind it. Sometimes suspension or interdict
may be inflicted in punishment of such crimes, but then they
are inflicted for a definite period, or for ever, and become pure
penalties, not censures.
(e) There must be contumacy in order that a censure may
be incurred, or, in other words, the delinquent must be con-
NATURE OF AN ECCLESIASTICAL CENSURE 255
scious at the time that he is committing a crime which is
punished by the Church by censure. It follows from this
that a censure cannot be inflicted ob homine by a particular
sentence without previous admonition, and this should ordi-
narily be in writing so as to be capable of proof. In censures
inflicted a jure or ab homine by a general precept which is of
the nature of a law, no special admonition is required, as the
law itself is a sufficient admonition. Nor is an admonition
necessary when suspension or interdict are inflicted by way
of mere penalty (Can. 2242).
4. It is of faith that the Church has the power of inflicting
censures. It is contained in the general power of binding and
loosing granted to the Church by her divine Founder. This
power is exercised by all ecclesiastical prelates who have juris-
diction in the external forum, unless their authority has been
restricted. The Pope and a general council have jurisdiction
over the whole Church, and they can bind all the faithful by
their laws and censures. A bishop can inflict censures on his
subjects, as can regular prelates on theirs. A parish priest
has no jurisdiction in the external forum, and cannot as such
impose censures, nor can laymen, nor women.
A bishop cannot lawfully exercise contentious jurisdiction
outside his diocese, and consequently he cannot inflict censures
outside his diocese when the case requires a judicial process.
If the case does not require any judicial process, he may impose
a censure on a guilty subject even when he is outside his
diocese.
A bishop within his diocese may punish with censure a
subject who is now outside the diocese on account of a crime
which was committed within the diocese, and even on account
of a crime<which has been committed outside if it had reference
to the diocese. And so a parish priest who is absent from the
diocese and refuses to come to synod, or who is taking too
long a holiday, may be punished by censure. The more
probable opinion holds that a subject who violates a precept
imposed under censure while he is outside the diocese incurs
the censure, though St Alphonsus admits that the opposite
is probable. The jurisdiction of superiors over regulars is
personal, and these certainly incur censures imposed on them
wherever they may be at the time when it is imposed. Regulars
belonging to mendicant orders and members of the Society
of Jesus have a special privilege granted by the Holy See, by
which they cannot be put under censure by any bishop, even
when they do wrong in matters in which their general exemp-
256 CENSURES
tion is of no avail, and in which they are subject to the bishop.
In three cases, however, these religious may be punished by
episcopal censure, notwithstanding their special privilege.
Gregory XV permitted this in case they preach in churches
not their own without the bishop's licence, or in their own
without asking for his blessing, or against his command;
Innocent X added to this the case of disobedience with reference
to hearing confessions; and Urban VIII added the case of
hanging sacred pictures painted in an unusual or scandalous
manner.
5. In order to incur a censure, the delinquent must be
subject to the authority which imposes it. Strangers, there-
fore, do not incur the particular censures which bind in the
place where they are staying for a short time. If strangers,
however, violate some provision of the common law which
for such violation imposes a censure ferenctae sententiae, the
bishop of the place may inflict this on them. Even when
they offend in other matters, the local ordinary may punish
them by other penalties, and if they prove contumacious, they
may be put under censure by him.
A censure latae sententiae is multiplied :
(1) If different crimes of which each is punished by censure
are committed by the same or distinct actions.
(2) If the same crime punished by censure is often repeated
so that there are several distinct crimes.
(3) If a crime punished by different censures by distinct
superiors is committed once or several times (Can. 2244).
6. Grave fear and ignorance prevent contumacy, and there-
fore hinder one who commits a crime under their influence
from incurring any censure by which such crime is punished.
Grave fear, however, does not excuse from censures inflicted
for crimes which produce contempt for the faith, or for ecclesi-
astical authority, or public harm to souls (Can. 2229, sec. 3,
iii). If, however, the ignorance be crass or supine, it will
not excuse from grave sin or contumacy, and so the censure
will be incurred. But if the censure is inflicted on those who
knowingly, rashly, with rash daring, or presumption, commit a
crime, full knowledge is required in order to incur the censure,
but merely affected ignorance will not prevent its being in-
curred (Can. 2229).
CHAPTER II
ABSOLUTION OF CENSURES
i. WHEN a censure has been incurred, it does not cease as
a rule merely by lapse of time or on the correction and amend-
ment of the delinquent. The delinquent must obtain abso-
lution of the censure from one who is competent to give it.
In some cases, however, a censure is imposed as long as certain
conditions last, and then on the termination of those conditions
the censure lapses without absolution.
Any confessor in the tribunal of Penance may absolve from
censures inflicted by law and not reserved to the Holy See
or to the bishop. Censures, too, which are imposed ab homine
but by a general precept or ordinance are in the same category,
and may be absolved by any confessor unless they are reserved
(Can. 2253, *)
Absolution for a reserved censure must be sought from
him to whom it is reserved, or from his delegate. Similarly,
absolution from a censure inflicted ab homine by a particular
precept must be obtained from him who inflicted it, or from
his superior, or successor in office, or from some one delegated
by one of these to grant absolution (Can. 2253, ii).
If a confessor in ignorance of the reservation absolves a
penitent from a censure and from sin, the absolution of the
censure is valid provided that it is not a censure ab homine
or a censure most specially reserved to the Holy See (Can.
2247, sec. 3).
If there is question of a censure which does not prevent the
reception of the sacraments if he who is under censure is
rightly disposed and has ceased to be contumacious, he can
be absolved from his sins, while the censure remains un-
absolved.
But if there is question of a censure which prevents the
reception of the sacraments he who is under censure cannot
be absolved from his sins unless he has previously been absolved
from the censure.
The absolution of a censure in the sacramental forum is
contained in the usual form of absolution for sins prescribed
in the Ritual ; in the non-sacramental forum it may be given
ii. 257 17
258 CENSURES
in any way, but for the absolution of excommunication it is
ordinarily advisable to use the form given in the Ritual
(Can. 2250).
If absolution for a censure is given in the external forum it
avails also for the internal forum ; if it is given in the internal
forum he who is absolved if there is no scandal can act as
absolved also in the external forum; but unless the grant of
absolution is proved or at least can be lawfully presumed in
the external forum, the censure can be urged by the superiors
of the external forum and the guilty party should obey them
until absolution is obtained in the same forum (Can. 2251).
When treating of the sacrament of Penance in the chapter
on reserved cases we saw that any priest has unrestricted
faculties to absolve any penitent in danger of death, and that
a simple confessor has very large powers in more urgent cases
by Canon 2254.
PART II
DIFFERENT KINDS OF CENSURES
CHAPTER I
EXCOMMUNICATION
i. OF all the penalties which the Church can inflict, excom-
munication is the most severe, and it virtually contains the
others. It deprives the delinquent of all the advantages which
he possessed as a member of the Church, and puts him out-
side the communion of the faithful. ' According to the ancient
discipline of the Church, no excommunicated person could
hold any intercourse with the faithful, nor could the faithful
hold intercourse with him, but at the close of the Middle Ages,
when heresy became more common, it grew to be impossible
to maintain the ancient rigour, and Martin V introduced an
important mitigation in the law. By the decree Ad evitanda,
he distinguished between those under censure who were still
to be avoided and those who were to be tolerated. All who
were excommunicated by name, and at the same time specially
denounced by name, together with all who notoriously violated
the privilege of the canon by striking clerics, were still to be
avoided; all others were to be tolerated. By this concession
Catholics might without scruple, as far as concerned the
censure, henceforth have intercourse with persons under
censure who were tolerated. The concession was not, indeed,
made directly in favour of those under censure, but these
could not fail to benefit indirectly by the relaxation in the law
that had been granted to the faithful. The tolerated as well
as those to be avoided were still theoretically subject to the
former disabilities, but custom made a distinction between
them in several important respects.
The Code retains the distinction between excommunicates
who are to be avoided and those who are tolerated; no one
is to be avoided as excommunicated unless he has been excom-
municated by name by the Holy See, publicly denounced as
such, and in the sentence it is expressly said that he is to be
avoided (Can. 2258).
259
260 CENSURES
By the ancient discipline one of the faithful who held un-
lawful intercourse with one who was under excommunication
himself incurred the minor excommunication, but this penalty
has ceased to exist since the promulgation of the constitution
of Pius IX, Apostolicae Sedts, where no mention is made of it.
2. The effects of excommunication, according to the Code,
may be enumerated as follows:
(a) An excommunicated person has no right to assist at
divine offices that is, functions of the power of order which
are ordained to the worship of God by the institution of Christ
or of the Church, and which can be exercised by clerics alone.
(b) An excommunicated person cannot receive the sacra-
ments, and after a declaratory or condemnatory sentence, not
even the sacramentals.
(c) As a general rule the lawful administration of the sacra-
ments and sacramentals is forbidden to excommunicated
persons. However, especially if other ministers are not to be
had, the faithful may ask for the sacraments and sacramentals
from an excommunicated priest, and then the latter can ad-
minister the same without asking the reason for the request.
But from one who is to be avoided and from others after
a condemnatory or declaratory sentence, only in danger of
death can the faithful ask for sacramental absolution, and then
also the other sacraments and sacramentals if other ministers
are not to be had.
(d) An excommunicated person does not share in the indul-
gences, suffrages, and public prayers of the Church.
The faithful, however, are not forbidden to pray for him
privately. Priests are not forbidden privately and with the
avoidance of scandal to offer Mass for him, but only for his
conversion, if he is to be avoided.
(e) An excommunicated person is removed from the exercise
of ecclesiastical offices in law within the limits laid down under
the proper heads.
(/) An act of jurisdiction, both of the external and internal
forum, when exercised by an excommunicated person is un-
lawful, and also invalid after a condemnatory or declaratory
sentence, with the exceptions mentioned above.
(g) An excommunicated person is debarred from the right
of electing, presenting, nominating, he cannot acquire dignities,
offices, benefices, ecclesiastical pensions, or other posts in the
Church ; nor can he be promoted to orders.
(h) After a condemnatory or declaratory sentence of ex-
communication he is deprived of the emoluments of office if
EXCOMMUNICATION 261
he had one in the Church, and if he is to be avoided, of the
office itself.
(k) The faithful ought to avoid communicating in secular
matters with one who is to be avoided, unless there is question
of a spouse, of parents, children, servants, subjects, and gener-
ally unless a reasonable cause excuses it (Can. 2259-2267).
Beside the foregoing effects immediately produced by ex-
communication, there are others more remote. If the person
under excommunication violates the censure by unlawfully
and solemnly exercising sacred Orders, he incurs irregularity,
and if after due admonitions he takes no steps to be released
from the censure but remains in it for a whole year, he becomes
suspect of heresy (Can. 985, vii; 2340).
CHAPTER II
SUSPENSION
i. SUSPENSION is a censure by which a cleric is deprived of
the use of some ecclesiastical power which he has by reason
of his orders, office, or benefice, or, in the words of the Code,
it is a censure by which a cleric is debarred from office, or
benefice, or both.
This censure, then, differs from the rest in that it is inflicted
only on clerics, whom it deprives of the lawful exercise of some
portion or of the whole of the ecclesiastical power which they
possess. A suspended priest may hear Mass and receive the
sacraments, and he retains the order or office from which he
is suspended, but he cannot lawfully exercise that order or
office as long as he is under censure.
Suspension may be partial, as when it deprives the delin-
quent of the exercise of some sacred order, or office, or of the
administration and fruits of his benefice ; or it may be total and
embrace all those ecclesiastical powers. When a cleric is
simply suspended without any special limitation he is under-
stood to be totally suspended from all sacred orders, the
exercise of his office, and the fruits of his benefice.
Suspension ab homme, inflicted for the perpetration of a
crime, should ordinarily be imposed after the crime has been
proved judicially. However, the Council of Trent 1 permitted
prelates to suspend their clerics on account of a secret crime
and without judicial process. If they use this right, they are
said to suspend the delinquent ex informata conscientia; if it
is inflicted as a censure they are bound to make known the
grounds of their action to the delinquent himself, and they
should be prepared to submit them to the Sacred Congregation
if he have recourse to Rome, as he has a right to do, though he
has no right to a strict appeal. 2
Suspension inflicted for life, or for a crime which is alto-
gether past and done with, or at the will and good pleasure of
the superior, is not a censure in the strict sense, but a mere
penalty inflicted in punishment for crime.
1 Sess. xiv, c. i, de Ref. ; can. 2186 ff.
2 Instruct. S.C. de P.P., October 20, 1884.
262
SUSPENSION 263
2. A suspended person who exercises an act prohibited him
by the censure commits grave sin, and if he solemnly exercises
sacred orders after being suspended from them he incurs the
penalty of irregularity in addition (Can. 985). An act of
jurisdiction on the part of one who is publicly suspended after
a condemnatory or declaratory sentence, or if the jurisdiction
were expressly revoked by the superior, would be invalid;
otherwise it would always be valid, and even lawful if it were
exercised at the request of the faithful who have the right to
ask it of him.
CHAPTER III
INTERDICT
i. INTERDICT is a censure which prohibits the use of liturgical
offices, some sacraments, and ecclesiastical burial. It differs
from excommunication and suspension, even when the effects
are similar, in that excommunication deprives the delinquent
of the use of the sacraments, for example, inasmuch as that
use is a communication with the faithful, and suspension
deprives the delinquent of the exercise of ecclesiastical power
in the administration of the sacraments, while interdict forbids
their use inasmuch as they are sacred actions and objects of
which for just reasons the delinquent is deprived.
An interdict is local, personal, or mixed, as the prohibition
immediately affects the place, certain persons, or both.
It is general or special as it affects the whole of some country
or body; or only some particular place or person, physical or
moral.
A local interdict, whether general or special, does not forbid
the administration of the sacraments and sacramentals to the
dying under proper conditions, but it forbids in the place any
divine office or sacred rite with the following exceptions :
On the feasts of Christmas, Easter, Whit Sunday, Corpus
Christi and the Assumption of the Blessed Virgin, a local
interdict is suspended, and the conferring of orders and the
solemn nuptial blessing are alone forbidden.
If the interdict was local and general and the decree of inter-
dict did not expressly state otherwise :
(1) Provided that they are not personally interdicted, clerics
are allowed in private to exercise all divine offices and sacred
rites in any church or oratory, with closed doors, in a low voice
and without the ringing of bells.
(2) Moreover, in the cathedral, in parish churches, and in
the only church in the place, and in these places alone, the
celebration of one Mass, the reservation of the Blessed Sacra-
ment, the administration of Baptism, the Eucharist, Penance,
assisting at marriage, with the exclusion of the nuptial blessing,
funerals excluding all pomp, the blessing of baptismal water,
and of the holy oils, and preaching the word of God are per-
264
INTERDICT 265
mitted. Moreover, in these sacred functions singing is for-
bidden and pomp in the sacred furniture, the ringing of bells,
the playing of the organ and of other musical instruments ; and
Holy Viaticum should be carried to the sick privately.
Even if a cemetery is specially interdicted the bodies of the
faithful may be buried there, but without any ecclesiastical
rite (Can. 2270-2272).
2. The violation of an interdict by doing what it forbids is
a grave sin, and a cleric who violates a personal interdict by
the exercise of an action belonging to sacred orders or who
performs such an action in a place which is interdicted by
name incurs irregularity (Can. 985, vii).
CHAPTER IV
ECCLESIASTICAL PENALTIES
i. CERTAIN ecclesiastical penalties resemble censures in some
respects, and it will be convenient to say a word about them
here. Deposition is an ecclesiastical penalty by which a cleric
as a punishment for grave crime is for ever suspended from his
office and rendered incapable of holding any office, dignity,
benefice, pension, or post in the Church, and deprived of those
which he has, even though he was ordained on their title
(Can. 2303). It differs from a censure in that it is vindictive,
not remedial, and it does not endure merely until correction,
amendment, and absolution ; but of itself it is perpetual. The
deposed cleric retains the privileges of the forum and of the
canon.
2. Degradation is a more severe penalty than deposition,
inasmuch as it reduces the cleric to the state of a layman as
far as it is in the power of the Church so to do, and deprives him
of all clerical offices, rights, and privileges. Degradation is
inflicted by the bishop in punishment of grave crimes com-
mitted by clerics who are incorrigible, by depriving them
solemnly of their vestments and insignia of office, and handing
them over to be dealt with by the secular arm.
3. By ecclesiastical burial is meant interment in consecrated
ground with the rites of the Church. All Catholics who die
in communion with the faithful have a right to ecclesiastical
burial. If there is no consecrated ground in which they can
be buried, the grave in which they are placed is blessed at the
time of interment. As far as possible Catholics should have a
special cemetery of their own or a portion at least of the common
cemetery assigned to them exclusively. In this a part should
be left unblessed for the reception of the bodies of unbaptized
infants and of those to whom Christian burial is to be denied.
These are either such as are deprived of ecclesiastical burial
because -they died out of communion with the faithful, or those
to whom it is denied in punishment of crime.
To the first category belong all who are not baptized, open
and public heretics, schismatics, apostates, and those under
excommunication, for " with those with whom we have not
266
ECCLESIASTICAL PENALTIES 267
communicated when alive we do not communicate when
dead." 1
To the second class belong suicides, unless they killed them-
selves while out of their mind, and this the Church readily
presumes, those who have been killed in a duel, those who did
not make their Easter duties, and open and public sinners. No
Catholic, however, should be refused ecclesiastical burial with-
out the sentence of the bishop.
Those also, who of their own free will chose to be cremated
and persevered in this choice till death, are denied ecclesiastical
burial. The Church's rites may be performed at the house
and in the Church in favour of those who are to be cremated
by the wish of another, but no sacred rites are permitted at
the crematorium. 2
Although cremation in itself is not intrinsically wrong, yet
the Church for good reasons forbids it, and it is gravely sinful
for a Catholic to take a formal part in the cremation of the
body of a Catholic.
1 C. 12, de Sepulturis.
2 S.O., December 15, 1886; can. 1203, 1240, 2339.
PART III
SPECIAL CENSURES
THE special censures which are now in -force in the Western
Church are contained in Book V, Part III, of the Code On
the Penalties of Particular Crimes. Of the excommunications
some are reserved to the Holy See in a very special manner,
others in a special manner, and others simply reserved ; others
are reserved to bishops, and others are not reserved but may
be absolved on proper conditions by any confessor. Special
faculties are required in order to absolve from cases reserved
to the Holy See, except in certain circumstances described
in the chapter on reserved cases. Faculties for cases simply
reserved will not avail for cases specially reserved, and faculties
for cases specially reserved will not avail for cases very specially
reserved. Censures very specially reserved to the Holy See
have other characteristics besides requiring very special facul-
ties for their absolution. Canon 2247, sec. 3, provides that
where a confessor in ignorance of the reservation absolves
a penitent from a censure and from a sin, the absolution is
valid except in the case of a censure ab homine, or of a censure
very specially reserved to the Holy See. Canon 2237, sec. 2,
grants power to bishops to remit penalties latae sententiae of
the common law in occult cases, but censures very specially
and those specially reserved are excepted. Canon 2252 pro-
vides that when a penitent has been absolved when in danger
of death by a simple confessor from a censure ab homine or
one very specially reserved to the Holy See, if he recovers he
is bound to present himself to the person who censured him
or to the Sacred Penitentiary, and submit to their require-
ments. This is not necessary in the case of one who has been
absolved in danger of death from other censures.
We shall give a list of the censures contained in the Code
with brief comments where they seem to be called for.
268
SPECIAL EXCOMMUNICATIONS 269
CHAPTER I
SPECIAL EXCOMMUNICATIONS
A. EXCOMMUNICATIONS VERY SPECIALLY RESERVED TO
THE HOLY SEE
Canon 2320
I. Qui species consecratas abjecerit vel ad malum finem
abduxerit aut retinuerit, est suspectus de haeresi, incurrit in
excommunicationem latae sententiae specialissimo modo Sedi
Apostolicae reservatam, est ipso facto infamis, et clericus
praeterea est deponendus.
Abjecerit. Spit them out, throw them away.
Abduxerit. Take them away for superstitious purposes, to
treat them irreverently.
Retinuerit. Keep them for show, out of curiosity to see
what would happen to them.
Canon 2343
II. Qui violentas manus in personam Romani Pontificis
injecerit excommunicationem contrahit latae sententiae Sedi
Apostolicae specialissimo modo reservatam, et est ipso facto
vitandus ; est ipso jure infamis ; clericus est degradandus.
It is a censure which safeguards the personal immunity of the
Roman Pontiff by a special form of the privilege of the canon.
Canon 2367
III. Absolvens sive fingens absolvere complicem in peccato
turpi incurrit ipso facto in excommunicationem specialissimo
modo Sedi Apostolicae reservatam; idque etiam in mortis
articulo si alius sacerdos, licet non approbatus ad confessiones,
sine gravi aliqua exoritura infamia et scandalo, possit excipere
morientis confessionem, excepto casu quo moribundus recuset
alii confiteri.
Eamdem excommunicationem non effugit absolvens vel
fingens absolvere complicem qui peccatum quidem complici-
tatis a quo nondum est absolutus non confitetur, sed ideo ita
se gerit, quia ad id a complice confessario sive directe sive
indirecte inductus est.
See the comments on this censure above, Penance, Chapter XI.
270 CENSURES
Canon 2369
IV. Confessarium qui sigillum sacramentale directe violare
praesumpserit, manet excommunicatio specialissimo modo Sedi
Apostolicae reservata; qui vero indirecte tantum, obnoxius est
poenis [suspensionis a celebratione Missae, et ab audiendis
sacramentalibus confessionibus vel etiam pro delicti gravitate
inhabilis ad ipsas excipiendas declaretur, privetur omnibus
beneficiis, dignitatibus, voce activa et passiva, et inhabilis ad
ea omnia declaretur, et in casibus gravioribus degradationi
quoque subjiciatur.]
Only a confessor who with full knowledge of the crime which
he is committing, and of its penalty, directly violates the seal of
confession and incurs ipso facto excommunication very specially
reserved to the Holy See. The penalties assigned by the Code
in punishment of others besides confessors, and of confessors
who presume to violate the seal indirectly, axeferendae sententiae.
B. EXCOMMUNICATIONS SPECIALLY RESERVED TO
THE HOLY SEE
Canon 2314
I. Omnes a Christiana fide apostatae et omnes et singuli
haeretici aut schismatici incurrunt ipso facto excommunica-
tionem; nisi moniti resipuerint priventur beneficio, etc.
The absolution from the above excommunication to be
given in the forum of conscience is specially reserved to the
Holy See. If, however, the crime of apostasy, heresy, or
schism has been brought before the external tribunal of the
local Ordinary in any way, even by voluntary confession, the
same Ordinary, but not the Vicar- General without a special
mandate, can absolve the penitent by his ordinary authority
in the external forum, when abjuration has previously been
made, according to law and other conditions to be complied
with have been fulfilled; but one so absolved can afterwards
be absolved from his sin in the forum of conscience by any
confessor. But the abjuration is held to have been lawfully
made when it is made before the local Ordinary or his delegate
and two witnesses at least (Can. 2314, sec. 2).
Canon 1325, sec. 2, defines the terms used in this censure.
" If anyone, after having received baptism, while retaining
the name of Christian pertinaciously denies any of the doctrines
which are to be believed by divine and Catholic faith or doubts
SPECIAL EXCOMMUNICATIONS 271
about it, he is a heretic; if he wholly abandons the Christian
faith, he is an apostate ; finally, if he refuses to be subject to
the Roman Pontiff or to communicate with the members of
the Church subject to him, he is a schismatic."
Canon 2318
II. In excommunicationem Sedi Apostolicae speciali modo
reservatam ipso facto incurrunt, opere publici juris facto,
editores librorum apostatarum, haereticorum et schismati-
corum, qui apostasiam, haeresim, schisma propugnant, itemque
eosdem libros aliosve per apostolicas litteras nominatim pro-
hibitos defendentes aut scienter sine debita licentia legentes
vel retinentes.
Editores. The publishers of books defending apostasy, heresy,
and schism, written by apostates, heretics, and schismatics, incur
this censure when the book is published.
Defendentes. Also those who defend those same books or
others prohibited by name by apostolic letters, such as Fenelon's
Explication des Maximes des Saints.
Legentes. Those who read them without leave knowing that
they are forbidden under censure.
Retinentes. Retaining for any purpose whatever without leave.
Canon 2322
III. Ad ordinem sacerdotalem non promotus si Missae
celebrationem simulaverit aut sacramentalem confessionem
exceperit, excommunicationem ipso facto contrahit, speciali
modo Sedi Apostolicae reservatam; et insuper laicus quidem
privetur pensione aut munere, si quod habeat in Ecclesia, aliisque
poenis pro gravitate culpae puniatur; clericus vero deponatur.
Simulaverit. So that onlookers think he is saying Mass.
Confessionem. So that the penitent makes his confession
with a view to absolution.
Canon 2332
IV. Omnes et singuli cujuscumque status, gradus seu
conditionis etiam regalis, episcopalis vel cardinalitiae fuerint,
a legibus, decretis, mandatis Romani Pontificis pro tempore
existentis ad Universale Concilium appellantes, sunt suspecti
de haeresi et ipso facto contrahunt excommunicationem Sedi
Apostolicae speciali modo reservatam.
CENSURES
Appettantes. Physical persons who appeal from the Pope
to an Oecumenical Council, not to a future Pope or to the
reigning Pope better informed.
Canon 2333
V. Recurrentes ad laicam potestatem ad impediendas
litteras vel acta quaelibet a Sede Apostolica vel ab ejusdem
Legatis profecta, eorumve promulgationem vel executionem
directe vel indirecte prohibentes, aut eorum causa sive eos
ad quos pertinent litterae vel acta sive alios laedentes vel
perterrefacientes, ipso facto subjaceant excommunicationi Sedi
Apostolicae speciali modo reservatae.
Recurrentes. Those incur this censure who with effect have
recourse to the civil authority to impede any letters or acts
of any kind issued by the Holy See, the Roman Congregations,
Offices, Legates, Nuncios, Apostolic Delegates.
Prohibentes. Preventing in any way their promulgation and
execution.
Laedentes. Injuring and frightening with effect those to
whom the letters belong or others concerned in their promul-
gation and execution.
Canon 2334
VI. Excommunicatione latae sententiae speciali modo Sedi
Apostolicae reservata plectuntur :
(1) Qui leges, mandata, vel decreta contra libertatem aut
jura Ecclesiae edunt.
(2) Qui impediunt directe vel indirecte exercitium juris-
dictionis ecclesiasticae sive interni sive externi fori, ad hoc
recurrentes ad quamlibet laicalem potestatem.
Edunt. Public authorities who make laws, issue mandates
and decrees against the liberty and rights of the Church, incur
this censure.
Impediunt. As also do those who hinder with effect in any
way the exercise of ecclesiastical jurisdiction by having recourse
to any sort of lay authority.
Canon 2341
VII. Si quis contra praescriptum [privilegii fori] ausus
fuerit ad judicem laicum trahere aliquem ex S.R.E. Cardi-
nalibus, vel Legatis Sedis Apostolicae, vel ofEcialibus majori-
bus Romanae Curiae, ob negotia ad eorum munus pertinentia,
SPECIAL EXCOMMUNICATIONS 273
vel Ordinarium proprium, contrahit ipso facto excommuni-
cationem Sedi Apostolicae speciali modo reservatam.
Trahere. Those who without leave of the Holy See sum-
.mon as defendants, not as witnesses, Cardinals, Nuncios,
Delegates Apostolic, or their own Ordinary before a lay judge
in a civil or criminal action incur this censure.
Ausus. Full knowledge and deliberation are required to
incur the censure.
Canon 2343
VIII. Qui violentas manus injecerit in personam S.R.E.
Cardinalis vel Legati Romani Pontificis . . . Patriarchae,
Archiepiscopi, Episcopi etiam titularis tantum, incurrit in
excommunicationem latae sententiae Sedi Apostolicae speciali
modo reservatam.
Violentas. One who inflicts an injury which amounts to
a grievous sin on the body, liberty, or dignity of any of the
Prelates mentioned incurs this censure. The injury must be
personal and by deed, not by word.
Canon 2345
IX. Usurpantes vel detinentes per se vel per alios bona aut
jura ad Ecclesiam Romanam pertinentia, subjaceant excom-
municationi latae sententiae speciali modo Sedi Apostolicae
reservatae.
Usurpantes. Seizing and holding as one's own what belongs
to another.
Detinentes. Keeping what belongs to the Roman Church
though it might have been bought from another who seized it.
Jura. Rights of all sorts, but here the rights of the Temporal
Power of the Pope are specially intended.
Canon 2360
X. Omnes fabricatores vel falsarii litterarum decretorum
vel rescriptorum Sedis Apostolicae vel iisdem litteris, decretis
vel rescriptis scienter utentes incurrunt ipso facto in excom-
municationem speciali modo Sedi Apostolicae reservatam.
Fabricatores. Forgers and falsifiers of letters, decrees, and
rescripts of the Holy See are all subject to this censure.
Utentes. Those who make use of letters, decrees, and
rescripts forged or falsified by others. They must know that
the documents which they use are forged or falsified.
18
274 CENSURES
Canon 2363
XI. Si quis per seipsum vel per alios confessarium de
sollicitationis crimine apud Superiores falso denunciaverit,
ipso facto incurrit in excommunicationem speciali modo Sedi
Apostolicae reservatam, a qua nequit ullo in casu absolvi, nisi
falsam denuntiationem formaliter retractaverit, et damna, si
qua inde secuta sint, pro viribus reparaverit, imposita insuper
gravi ac diuturna poenitentia, firmo praescripto Can. 894.
By Canon 894 the sin, apart from the censure, is reserved to
the Holy See.
On this matter, see above, Penance, Chapter XI.
C. EXCOMMUNICATIONS SIMPLY RESERVED TO THE
HOLY SEE
Canon 2237, sec. 2, provides that in occult cases the Ordinary
can remit, himself or through another, penalties latae sententiae
imposed by common law, except censures very specially or
only specially reserved to the Apostolic See.
Canon 2327
I. Quaestum facientes ex indulgentiis plectuntur ipso facto
excommunicatione Sedi Apostolicae simpliciter reservata.
Quaestum. Granting or publishing indulgences for money.
Canon 2335
II. Nomen dantes sectae massonicae aliisve ejusdem generis
associationibus quae contra Ecclesiam vel legitimas civiles
potestates machinantur, contrahunt ipso facto excommunica-
tionem Sedi Apostolicae simpliciter reservatam.
Nomen dantes. Becoming a member of the society.
Sectae massonicae. The society of Freemasons.
Aliisve. Other societies which are like the Freemasons in
that they plot against the Catholic Church or against lawful
civil authority, or against both. It is immaterial whether they
plot openly or secretly, whether they take a secret oath or an
oath of secrecy or not. The only conditions which this canon
requires are that the members should form an organized
society, a body corporate, and that the society should plot,
work by action, speech, writing, against the Church or against
lawful civil authority.
SPECIAL EXCOMMUNICATIONS 275
Canon 2338
III. Sec. i. Absolvere praesumentes sine debita facultate
ab excommunicatione latae sententiae specialissimo vel speci-
ali modo Sedi Apostolicae reservata, incurrunt ipso facto in
excommunicationem Sedi Apostolicae simpliciter reserva-
tam.
Praesumentes. With knowledge of the fact and of the cir-
cumstances.
Specialissimo vel speciali. Not simply reserved cases.
Sec. ii. Impendentes quodvis auxilium vel favorem excom-
municato vitando in delicto propter quod excommunicatus
fuit; itemque clerici scienter et sponte in divinis cum eodem
communicantes et ipsum in divinis officiis recipientes, ipso
facto incurrunt in excommunicationem Sedi Apostolicae
simpliciter reservatam.
Impendentes. Giving any sort of material assistance, help,
support, or moral encouragement and support.
Vitando. To an excommunicate who is to be avoided.
Delicto. Precisely in the crime on account of which he is
excommunicated.
Clerici recipientes. The rector of a church allowing him to
say Mass, etc., not others who assist at it.
Scienter et sponte. Crass ignorance and fear excuse from
the censure.
In divinis. In divine worship, not in secular matters.
Canon 2341
IV. Si quis contra praescriptum [privilegii fori] ausus fuerit
ad judicem laicum trahere . . . alium Episcopum etiam mere
titularem, aut Abbatem vel Praelatum nullius, vel aliquem ex
supremis religionum juris pontificii Superioribus excommuni-
cationem latae sententiae Sedi Apostolicae simpliciter reserva-
tam incurrit.
See above, p. 272 /.
Canon 2342
V. Plectuntur ipso facto excommunicatione Sedi Apostolicae
simpliciter reservata:
(i) Clausuram monialium violantes, cujuscumque generis
aut conditionis vel sexus sint, in earum monasteria sine legitima
hcentia ingrediendo, pariterque eos introducentes vel admit-
3?6 CENSURES
tentes ; quod si clerici sint, praeterea suspendantur per tempus
pro gravitate culpae ab Ordinario definiendum.
(3) Moniales e clausura illegitime exeuntes contra prae-
scriptum Can. 601.
Clausuram monialium. The papal enclosure of nuns with
solemn vows. The enclosure comprises the whole convent except
the church and adjoining sacristy and the parlour near the door.
Violantes. By going into the enclosure without leave of
the Holy See. Canon 600 gives the exceptions, which are:
The local Ordinary and regular superior with companions on
visitation, the confessor, civil rulers with their wives and
attendants, Cardinals; with the permission of the abbess and
the approbation of the local Ordinary, the doctor, surgeon,
workmen for necessary repairs.
Cujuscumque. Clerics, laymen, women, children under the
age of puberty.
Introducentes. Those who conduct them inside, open the
door for them.
Admittentes. Superioresses, porteresses, whose duty it is
to keep them out.
The law of enclosure for nuns not only forbids externs to
enter the convent enclosure without leave, but it also prohibits
the nuns from leaving it without special leave of the Holy See
except in imminent danger of death or other very serious evil
(Can. 601).
(2) Mulieres violantes regularium virorum clausuram et
Superiores aliique, quicumque ii sint, eas cujuscumque aetatis
introducentes vel admittentes; et praeterea religiosi intro-
ducentes vel admittentes priventur officio, si quod habeant,
et voce activa ac passiva.
Mulieres. Not, therefore, men, who may enter the enclosure
of regular orders of men.
Regularium. Who take solemn vows.
Superiores. Higher and lower, porters and others.
The rest is clear from what has been said above.
Canon 2346
VI. Si quis bona ecclesiastica cujuslibet generis sive mobilia
sive immobilia, sive corporalia sive incorporalia, per se vel
per alios in proprios usus convertere et usurpare praesumpserit
aut impedire ne eorumdem fructus seu reditus ab iis ad quos
jure pertinent percipiantur, excommunicationi tamdiu sub-
SPECIAL EXCOMMUNICATIONS
jaciat quamdiu bona ipsa integre restituerit, praedictum im-
pedimentum removerit, ac deinde a Sede Apostolica absolu-
tionem impetraverit.
One who, with full knowledge of the crime and its penalty,
converts ecclesiastical property of any sort to his own use,
or prevents its revenues going to the persons to whom they
belong, cannot obtain absolution, which must be asked of the
Holy See, until he has made full restitution and removed the
obstacle in the way of the revenues going to those who have
a right to them.
Canon 2351
VII. [Mortui ex duello aut ex vulnere inde relate privantur
ecclesiastica sepultura nisi ante mortem aliqua dederint poeni-
tentiae signa, ac praeterea] duellum perpetrantes aut simpliciter
ad illud provocantes vel ipsum acceptantes vel quamlibet
operam aut favorem praebentes, nee non de industria spec-
tantes illudque permittentes vel quantum in ipsis est non
prohibentes, cujuscumque dignitatis sint, subsunt ipso facto
excommunicationi Sedi Apostolicae simpliciter reservatae.
Duellum. A single combat with deadly weapons undertaken
by agreement. Those who actually fight or challenge, or
accept a duel, or afford any assistance or favour to those who
do, incur this censure. Spectators of set purpose, those who
permit it or do not stop it as far as they can, though they be
kings or generals of armies, also incur it.
Canon 2388
VIII. Clerici in sacris constituti vel regulares aut moniales
post votum sollemne castitatis, itemque omnes cum aliqua
ex praedictis personis matrimonium etiam civiliter tantum
contrahere praesumentes, incurrunt in excommunicationem
latae sententiae Sedi Apostolicae simpliciter reservatam.
All who have taken a solemn vow of chastity and who pre-
sume to attempt marriage, as well as all who knowingly contract
marriage with any of them, incur this censure.
Canon 2392
IX. Delictum perpetrantes simoniae in quibuslibet ofHciis,
beneficiis aut dignitatibus ecclesiasticis incurrunt in excom-
municationem latae sententiae Sedi Apostolicae simpliciter
reservatam.
278 CENSURES
Delictum simoniae. Not merely internal but external simony.
Canon 728 provides that " when there is question of simony
buying and selling, exchange, etc., are to be taken in a wide
sense for any convention or agreement although not put into
effect, even tacit, in which a simoniacal intention is not mani-
fested expressly but may be gathered from the circumstances."
Simony, then, whether of divine or ecclesiastical law, which is
committed externally in election, presentation, or collation of
ecclesiastical offices, benefices, or dignities, is punished by
this censure and by other penalties here and in Canon 729.
Canon 2405
X. Vicarius Capitularis aliive omnes tarn de Capitulo quam
extranei, qui documentum quodlibet ad Curiam episcopalem
pertinens sive per se sive per alium subtraxerint vel destru-
xerint vel celaverint vel substantialiter immutaverint, incurrunt
ipso facto in excommunicationem Sedi Apostolicae simpliciter
reservatam.
The terms of the censure are wide and clear. The docu-
ment, whether public or private, must be of some importance,
and must belong to the episcopal Curia as such.
D. EXCOMMUNICATIONS RESERVED TO THE ORDINARY
Canon 2319
I. Subsunt excommunicationi latae sententiae Ordinario
reservatae catholici :
(1) Qui matrimonium ineunt coram ministro acatholico
contra praescriptum Can. 1063, sec. i.
(2) Qui matrimonio uniuntur cum pacto explicito vel implicito
ut omnis vel aliqua proles educetur extra catholicam Ecclesiam.
(3) Qui scienter liberos suos acatholicis ministris baptizandos
offerre praesumunt.
(4) Parentes vel parentum locum tenentes qui liberos in
religione acatholica educandos vel instituendos scienter tradunt.
Four classes of persons are punished by this censure reserved
to the Ordinary :
(i) Catholics who contract marriage before a non-Catholic
minister, not acting as a civil officer but as a minister of religion,
whether only one or both of the parties are Catholics, whether
or not a Catholic marriage is also contemplated before or
after. Canon 1063 is as follows: " Etsi ab Ecclesia obtenta
SPECIAL EXCOMMUNICATIONS 279
sit dispensatio super impedimento mixtae religionis, conjuges
nequeunt, vel ante vel post matrimonium coram Ecclesia
initum, adire quoque sive per se sive per procuratorem mini-
strum acatholicum uti sacris addictum, ad matrimonialem
consensum praestandum vel renovandum." Section 2 of this
Canon forbids the parish priest to assist at a marriage if he
knows that the parties have transgressed or are going to trans-
gress this law. Section 3 allows the exception when the non-
Catholic minister acts as a civil officer, and the law requires it.
(2) Catholics who marry with an explicit or implicit agree-
ment that all or any one of the offspring of the marriage are to
be brought up outside the Church. The censure would not be
incurred if the agreement were made after the marriage had
been contracted.
(3) Catholics who knowingly presume to offer their children
to non- Catholic ministers for Baptism. Ignorance of the law
or only of the censure, or of the fact that those to whom the
children are offered are non- Catholic ministers, will excuse
from the censure, though it be crass and supine.
(4) Parents or those who hold the place of parents who
knowingly give their children to be educated or trained in a
non-Catholic religion. Again, even crass ignorance excuses
from the censure. Educated means taught and brought up
in general, trained means taught in some special branch or
branches when the general education has been completed.
Canon 2326
II. Qui falsas reliquias conficit, aut scienter vendit, dis-
tribuit, vel publicae fidelium venerationi exponit, ipso facto
excommunicationem Ordinario reservatam contrahit.
Scienter affects only those who sell, distribute, or expose
false relics to the public veneration of the faithful, not those
who make them.
Canon 2343
III. Qui violentas manus injecerit in personam aliorum
clericorum vel utriusque sexus religiosorum, subjaceat ipso
facto excommunicationi Ordinario proprio reservatae.
Clericorum. The inferior clergy, comprising all who have
received the first tonsure up to bishops.
Religiosorum. Religious of both sexes, whether under
solemn or simple vows, perpetual or temporary, lay brothers
and lay sisters, and also novices, but not postulants. Members
a8o CENSURES
of communities living together in common under the rule of
superiors according to approved constitutions, but without
vows, enjoy the privileges of clerics, according to Canon 680,
and this among the rest. Tertiaries who satisfy this condition
enjoy the privilege, but not otherwise.
Canon 2350
IV. Procurantes abortum, matre non excepta, incurrunt,
effectu secuto, in excommunicationem latae sententiae Ordi-
nario reservatam.
Procurantes. Using physical or moral means with the
intention of prematurely causing the ejection of the foetus
i.e, before the seventh month of gestation.
Matre. Before the Code some authors excepted the mother.
Effectu. For the censure to be incurred, it must be certain
that abortion followed from the means used.
Canon 2385
V. Religiosus, apostata a religione, ipso jure incurrit in excom-
municationem proprio Superior! majori, vel, si religio sit laicalis
aut non exempta, Ordinario loci in quo commoratur, reservatam.
Apostata a religione dicitur professus a votis perpetuis sive
sollemnibus sive simplicibus, qui e domo religiosa illegitime
egreditur cum animo non redeundi vel qui etsi legitime
egressus, non redit, eo animo ut religiosae obedientiae sese
subtrahat. Malitiosus animus jure praesumitur si religiosus
intra mensem nee reversus fuerit, nee Superiori animum
redeundi manifestaverit (Can. 644, sees, i, 2).
Canon 2388
VI. Professi votorum simplicium perpetuorum tarn in
Ordinibus quam in Congregationibus religiosis [matrimonium
etiam civiliter tantum itemque cum aliqua ex praedictis personis
contrahere praesumentes] .omnes excommunicatio tenet latae
sententiae Ordinario reservata.
See above, p. 277.
E. EXCOMMUNICATIONS RESERVED TO No ONE
From a censure which is not reserved any confessor in the
tribunal of Penance, and outside the tribunal of Penance
anyone who has jurisdiction over the culprit in the external
forum can give absolution (Can. 2253).
SPECIAL EXCOMMUNICATIONS 281
Canon 2318
I. Auctores et editores qui sine debita licentia sacrarum
Scripturarum libros vel eorum adnotationes aut commentarios
imprimi curant, incidunt ipso facto in excommunicationem
nemini reservatam.
Auctores. Authors of notes and commentaries on Holy
Scripture.
Licentia. Leave of the Ordinary of the author, or of the
place where the notes, etc., are printed or published.
Imprimi. Having the books or notes or commentaries
printed is what is forbidden under censure without leave.
Canon 2339
II. Qui ausi fuerint mandare seu cogere tradi ecclesiasticae
sepulturae infideles, apostatas a fide, vel haereticos, schis-
maticos, aliosve sive excommunicatos sive interdictos, contra
praescriptum Can. 1240, sec. i contrahunt excommunica-
tionem latae sententiae nemini reservatam.
Ausi. Crass ignorance excuses from the censure.
Mandare. Public authority is to be understood.
Sepulturae. Which consists not only of burial in conse-
crated ground, but in transferring the corpse to the church
and therein holding a funeral service (Can. 1204). So that
mere burial would not incur the censure.
Canon 2347
III. Quod si beneplacitum apostolicum in memoratis Canoni-
bus 534, sec. i, 1532 praescriptum [ad alienanda bona eccle-
siastica] fuerit scienter praetermissum omnes quovis modo
reos sive dando sive recipiendo sive consensum praebendo
manet excommunicatio latae sententiae nemini reservata.
Scienter. Full knowledge that there is question of ecclesi-
astical property, that leave of the Holy See is required for its
alienation, and this under censure.
Omnes. Not only the giver and the receiver, but all whose
consent is required for the transaction, and who gave it.
Canon 2352
IV. Excommunicatione nemini reservata ipso facto plec-
tuntur omnes, qualibet etiam dignitate fulgentes, qui quoquo
modo cogant sive virum ad statum clericalem amplectendum,
282 CENSURES
sive virum aut mulierem ad religionem ingrediendam vel ad
emittendam religiosam professionem tarn sollemnem quam
simplicem, tarn perpetuam quam temporariam.
Cogant. By violence, threats, instilling grave fear.
Emittendam. Compelling them after they have entered
freely to make their profession against their will.
Canon 2368
V. Fidelis qui scienter omiserit eum a quo sollicitatus fuerit,
intra mensem denunciare contra praescriptum Can. 904
incurrit in excommunicationem latae sententiae nemini reserva-
tam, non absolvendus nisi postquam obligation! satisfecerit, aut
se satisfacturum serio promiserit.
Fidelis. He who has been solicited and who refuses to
denounce the culprit is subject to this censure, not someone
else who knows of the crime.
See above on Penance, Chapter XI.
CHAPTER II
SPECIAL SUSPENSIONS
I. Si clericus, non obtenta ab Ordinario loci licentia, aliam
'personam [infra Praelatum] privilegio fori fruentem ausus
fuerit ad judicem laicum trahere, incurrit ipso facto in suspen-
sionem ab Officio reservatam Ordinario (Can. 2341).
II. Sacerdos qui sine necessaria jurisdictione praesumpserit
sacramentales confessiones audire, est ipso facto suspensus
a divinis; qui vero a peccatis reservatis absolvere, ipso facto
suspensus est ab audiendis confessionibus (Can. 2366).
III. Episcopus aliquem consecrans in Episcopum, Episcopi,
vel loco Episcoporum, presbyteri assistentes, et qui consecra-
tionem recipit sine apostolico mandato, contra praescriptum
Can. 953, ipso jure suspensi sunt, donee Sedes Apostolica eos
dispensaverit (Can. 2370).
IV. Omnes, etiam episcopali dignitate aucti, qui per simo-
niam ad ordines scienter promoverint, vel promoti fuerint, aut
alia sacramenta ministraverint vel receperint, sunt suspecti
de haeresi; clerici praeterea suspensionem incurrunt Sedi
Apostolicae reservatam (Can. 2371).
V. Suspensionem a divinis Sedi Apostolicae reservatam,
ipso facto contrahunt, qui recipere ordines praesumunt ab
excommunicate vel suspense vel interdicto post sententiam
declaratoriam vel condemnatoriam ; aut a notorio apostata,
haeretico, schismatico; qui vero bona fide a quopiam eorum
sit ordinatus, exercitio careat ordinis sic recepti donee dis-
pensetur (Can. 2372).
VI. In suspensionem per annum ab ordinum collatione Sedi
Apostolicae reservatam ipso facto incurrunt :
(1) Qui contra praescriptum Can. 955 alienum subditum
sine Ordinarii proprii litteris dimissoriis ordinaverint.
(2) Qui subditum proprium qui alibi tanto tempore moratus
sit ut canonicum impedimentum contrahere ibi potuerit,
ordinaverint contra praescriptum Can. 993, n. 4; 994.
(3) Qui aliquem ad ordines majores sine titulo canonico
promoverint contra praescriptum Can. 974, sec. i, n. 57.
(4) Qui salvo legitimo privilegio, religiosum, ad familiam
pertinentem quae sit extra territorium ipsius ordinantis, pro-
283
284 CENSURES
moverint, etiam cum litteris dimissorialibus proprii Superioris,
nisi legitime probatum fuerit aliquem e casibus occurrere de
quibus in Can. 966 (Can. 2373).
VII. Qui sine litteris vel cum falsis dimissoriis litteris, vel
ante canonicam aetatem, vel per saltum, ad ordines malitiose
accesserit, est ipso facto a recepto ordine suspensus (Can.
2374).
VIII. Religiosus fugitivus ipso facto incurrit in privationem
officii si quod in religione habeat, et in suspensionem proprio
Superior! majori reservatam, si sit in sacris (Can. 2386).
IX. Religiosus clericus cujus professio ob admissum ab ipso
dolum nulla fuerit declarata, si sit in minoribus ordinibus
constitutus, e statu clericali abjiciatur; si in majoribus, ipso
facto suspensus manet, donee Sedi Apostolicae aliter visum
fuerit (Can. 2387).
X. Professus votorum perpetuorum ordinatus in sacris
dimissus ob delicta minora iis de quibus in Can. 670, ipso facto
suspensus manet, donee a Sancta Sede absolutionem obtinuerit
(Can. 671).
XI. Clericus qui in manus laicorum officium, beneficium, aut
dignitatem ecclesiasticam resignare praesumpserit, ipso facto
in suspensionem a divinis incurrit (Can. 2400).
XII. Abbas vel Praelatus nullius qui contra praescriptum
Can. 322, sec. 2, benedictionem non receperit, est ipso facto
a jurisdictione suspensus (Can. 2402).
XIII. Vicarius Capitularis concedens litteras dimissorias
pro ordinatione contra praescriptum Can. 958, sec. i, n. 3,
ipso facto subjacet suspension! a divinis (Can. 2409).
XIV. Superiores religiosi qui contra praescriptum Can. 965-
967 subditos suos ad Episcopum alienum ordinandos remittere
praesumpserint ipso facto suspensi sunt per mensem a Missae
celebratione (Can. 2410).
CHAPTER III
SPECIAL INTERDICTS
I. Universitates, Collegia, Capitula, aliaeve personae morales,
quocunque nomine nuncupentur [a legibus, decretis, mandatis,
Romani Pontificis pro tempore exsistentis ad Universale Con-
cilium appellantia] interdictum speciali modo Sedi Apostolicae
reservatum incummt (Can. 2332).
II. Scienter celebrantes vel celebrari facientes divina in locis
interdictis vel admittentes ad celebranda officia divina per
censuram vetita clericos excommunicates, interdictos, sus-
penses, post sententiam declaratoriam vel condemnatoriam,
interdictum ab ingressu ecclesiae ipso jure contrahunt, donee
arbitrio ejus cujus sententiam contempserunt congruenter
satisfecerint (Can. 2338, sec. 3).
III. Qui causam dederunt interdicto locali aut interdicto in
communitatem seu collegium, sunt ipso facto personaliter
interdicti (Can. 2338, sec. 4).
IV. Sponte sepulturam [ecclesiasticam infidelibus, apostatis,
a fide, vel haereticis, schismaticis aliisve sive excommunicatis
sive interdictis, contra praescriptum Can. 1240, sec. i] donantes,
interdictum ab ingressu ecclesiae Ordinario reservatum contra-
hunt (Can. 2339).
V. Catholici qui matrimonium mixtum etsi validum sine
Ecclesiae dispensatione inire ausi fuerint, ipso facto ab actibus
legitimis ecclesiasticis et sacramentalibus exclusi manent, donee
ab Ordinario dispensationem obtinuerint (Can. 2375).
285
BOOK XI
IRREGULARITIES
CHAPTER I
IRREGULARITY IN GENERAL
i. SOME men are incapable of performing the duties attached
to Orders, or, if not altogether incapable, they cannot perform
them with that decency and edification which their sacred
character and the Church require. A blind man cannot
administer the sacraments, and one who has been guilty of
great and notorious crimes is not a' suitable person to exercise
such holy offices and guide others in the way of virtue. Cer-
tain defects, then, and crimes, partly from the nature of things,
partly because the Church has so ordained, constitute a bar to
the reception of Orders. These are called irregularities, and
an irregularity is commonly defined to be a canonical impedi-
ment which primarily prevents the reception of Orders, and,
secondarily, the lawful exercise of the duties and rights annexed
to them. It is an impediment constituted by law, though it
has its foundation in the nature of things, and so there can be
no irregularity unless it is expressly sanctioned by law (Can.
983). It does not make the reception of Orders or their exer-
cise invalid ; it only makes these acts gravely sinful in one who
is under irregularity, and forbids under pain of grave sin the
admission of such a one to the clerical state or the conferring
of Orders on him. When Orders have been already received,
an irregularity can only produce its secondary effect and hinder
their lawful exercise (Can. 968, sec. 2). Even this effect has
place only in respect of sacred Orders, for, according to present
discipline, laymen may lawfully exercise the functions of the
minor Orders, with the exception of those of the exorcist.
2. Irregularities are said to be from defect when they arise
from an incapability of exercising the functions of Orders or
from the indecency there would be in exercising them. They
are said to be from crime when the Church has expressly laid
down that the commission of such a crime shall entail irregu-
larity in the delinquent.
Irregularity is perpetual and lasts for life unless it is removed
387
288 IRREGULARITIES
by dispensation, and no dispensation can be granted for some
irregularities arising from defect (Can. 983).
Irregularity which prevents the reception of Orders, and
consequently the exercise of them, is said to be total; that
which supervenes on the reception of Orders and only prevents
their lawful exercise is partial.
3. As only males and those who are baptized can be validly
ordained, the same two conditions are required in order to
be subject to irregularity. There is nothing to prevent the
same person from being subject to several different irregu-
larities arising from different defects or crimes, nor from being
subject to several irregularities of the same species arising
from several crimes committed against different people, as from
several homicides; but otherwise only one irregularity is con-
tracted from one and the same cause though several times
repeated, and so a priest who while under suspension celebrates
Mass several times only incurs one irregularity (Can. 989).
Whenever there is a doubt either of law or of fact as to
whether an irregularity has been incurred, almost all authorities
agree that in practice it must be held not to have been incurred.
Irregularities are incurred even by those who are ignorant
of them (Can. 988).
Besides irregularities which of themselves are perpetual
impediments to the reception of Orders, the Code enumerates
certain simple impediments which cease to exist on certain
conditions. They are: (i) The sons of non-Catholics as long
as their parents remain in error ; (2) husbands who have wives ;
(3) those who hold an office forbidden to clerics; (4) slaves;
(5) those bound to military service; (6) neophytes; (7) those
who labour under infamy of fact (Can. 987).
CHAPTER II
IRREGULARITIES FROM DEFECT
THE illegitimate are irregular from defect of birth (Can. 984).
i. Defect of birth arises from illegitimacy, when the parents
are either not married at all, or their marriage in the eyes of
the Church is null and void on account of some diriment
impediment known to both parties. If the impediment was
unknown to at least one of the parents, the marriage is called
putative, and the offspring is legitimate. When there is a
doubt concerning legitimacy, as in ''the case of foundlings,
legitimacy may be presumed until the contrary is proved.
This irregularity ceases by legitimation, dispensation, and
solemn religious profession. If the parents at the time of
conception or birth of the child could have been married, the
child is by ecclesiastical law legitimized by subsequent mar-
riage (Can. 1116); otherwise it can only be legitimized by the
rescript of the Pope. A dispensation from this irregularity
may be granted by the Pope, and by. delegated authority by
bishops, regular prelates, and others. Solemn religious pro-
fession takes away the irregularity as far as it is a bar to the
reception of Orders, but not so as to enable the party to accept
prelacies in the Order without dispensation.
2. Any bodily defect which makes it impossible to say Mass
and fulfil the other functions of Orders, or prevents the person
afflicted from exercising the sacred ministry with decency and
edification, constitutes an irregularity. Thus the blind, deaf,
mute, lame, crippled or maimed in limb or even necessary
fingers, notably deformed, and those who cannot drink wine,
are irregular.
In case of doubt the bishop may decide as to whether a
person is irregular, and in such a case he may dispense as far
as is necessary. If the irregularity is certain, only the Pope
or his delegate can dispense. A dispensation from this im-
pediment is more easily granted after ordination than before,
to enable a priest to exercise his functions.
3. Marriage as a sacrament symbolizes the union of Christ
with his Church, but to represent that union perfectly it
should be a marriage of one man with one woman. In a
n. 389 19
ago IRREGULARITIES
second marriage the representation is less perfect, and such
a bigamous marriage gives rise to the irregularity from defect
of the sacrament.
A man becomes irregular from bigamy when he has con-
tracted two or more valid marriages in succession.
4. Defect of lenity may cause irregularity in two ways :
(1) In the case of a judge who has passed sentence of death.
(2) In those who have undertaken the office of executioners
of a death sentence and their voluntary and immediate assistants.
5. Loss of reputation, or infamy, is a cause of irregularity.
Those who are guilty of certain grave crimes are declared by
canon law to be ipso facto infamous, and become irregular.
6. Those who are or who have been epileptics, insane, or
possessed by the devil are irregular ; if they became such after
being ordained and are now certainly free, the Ordinary can
permit his subjects to exercise again the Orders which they
have received.
CHAPTER III
IRREGULARITIES ARISING FROM CRIME
ACCORDING to Canon 985, the following are irregular from
crime. These crimes, however, do not cause irregularity
unless they were grave, external sins, whether public or occult,
and committed after Baptism, except in the case of receiving
Baptism from non-Catholics (Can. 986).
(1) Apostates from the faith, heretics, schismatics.
(2) Those who have allowed themselves to be baptized by
non- Catholics in any way except in case of extreme necessity.
(3) Those who have dared to attempt marriage or to go
through the form of a civil marriage, when either they them-
selves are bound by the bond of marriage or of a sacred Order
or religious vows though only simple and temporary, or with
a woman bound by the same vows or united in a valid marriage.
(4) Those who have committed voluntary homicide, or
procured with effect the abortion of a human foetus, and all
who co-operate in these crimes.
(5) Those who have mutilated themselves or others or have
attempted to take away their own life.
(6) Clerics who practise medicine or surgery forbidden to
them, if death follows therefrom.
(7) Those who exercise an act of Orders reserved to clerics
constituted in a sacred Order, when either they do not possess
that Order, or have been forbidden its exercise by a canonical
penalty, whether personal or local, medicinal or vindictive.
291
CHAPTER IV
REMOVAL OF IRREGULARITIES
As a general rule irregularities cease only by dispensation
granted by the Holy See through the Sacred Congregation on
the Discipline of the Sacraments for the external forum, and
through the Sacred Penitentiary for the internal forum.
Ordinaries personally or through another have power to
dispense their subjects from all irregularities arising from
occult crimes, except from voluntary homicide or the procuring
of abortion with effect, and others brought before their judicial
forum.
All confessors have the same power in more urgent occult
cases in which not even the Ordinary can be approached, and
there is danger of serious harm or loss of reputation, but only
to enable a penitent to exercise lawfully the Orders which he
has already received (Can. 990).
When there is a doubt of fact about an irregularity an Ordi-
nary can dispense if the Holy See is accustomed to dispense in
such cases (Can. 15).
The simple impediments cease on the total cessation of the
cause or fact from which they arise, and by dispensation.
In the petition for a dispensation from irregularities and
simple impediments all the irregularities and impediments in
the case should be mentioned. A general dispensation will
not avail for those not mentioned in bad faith.
If there is question of a dispensation from voluntary homicide,
the number of crimes must be mentioned under pain of in-
validity of the dispensation (Can. 991).
292
BOOK XII
INDULGENCES
CHAPTER I
THE NATURE OF AN INDULGENCE
i. IN every sin the teaching of the Catholic Church distin-
guishes two elements : the guilt and the penalty which it incurs.
The guilt is the injury committed against God by the sinner
and the displeasure with which God views the sinful act. If
the sin is mortal, it deprives the soul of sanctifying grace and
of God's friendship, so that a state of enmity exists between
God and the sinner. A venial sin is an injury against God;
it is the object of his displeasure, and is a stain on the soul,
but it does not rob the soul of sanctifying grace or deprive
it of the friendship of God. Besides this guilt a sin deserves
and ordinarily receives punishment at the hands of God. It
is a law of God's justice that wrongdoing entails suffering
either in this world or in the world to come. It is the sanction
which in the nature of things is annexed to the great moral
law. The penalty for mortal sin, as befits the unrepenting
and obstinate enemies of God, is eternal separation from him
and punishment in the fires of hell; the penalty for venial sin
is temporary punishment in this world or in purgatory. These
two elements in sin are not only distinct from each other in
thought ; they may be, and frequently are, separated in reality.
When God pardons mortal sin, the eternal penalty which it
deserves in hell is also remitted, but we know from revelation
that he frequently exacts from the sinner some temporary
punishment for the serious offence which has been committed
against him and right order. The guilt of David's adultery
was forgiven on his repentance, but he had to endure the loss
of the child and other punishments. This is only in keeping
with what we might expect at the hands of a wise Providence
and with what observation of the order of nature teaches us.
A man may truly repent of his sin, and he may have the fullest
confidence that God has pardoned it, but he knows that he
will have to bear the sad effects of it till his dying day.
This distinction between the guilt of sin and the penalty
293
294 INDULGENCES
due to it is necessary for the understanding of what is meant
by an indulgence. An indulgence is not the forgiveness of the
guilt of sin; much less is it a permission to commit sin. It
is the remission of the temporal punishment which often
remains due to sin after its guilt has been forgiven. An in-
dulgence, then, cannot be gained for unrepented sin, nor for
sin of which the guilt still stains the soul. If, however, the
guilt has been forgiven, any temporal punishment which remains
to be suffered in consequence of it may be remitted by indul-
gences and by other means.
2. As the Catholic Church claims that her divine Founder
empowered her ministers to forgive sin, provided that the
sinner has the requisite dispositions, so she also lays claim to
the power of remitting the temporal punishment due to sin
both by the ministration of the sacraments and by granting
indulgences. From the first centuries of the Christian era
her bishops have used the power to condone temporal punish-
ment due to sin outside sacramental confession, and they have
understood that this power was contained in the general power
to bind and loose granted to the Apostles and their successors
by our Lord. As the Pope has jurisdiction over the whole
world, he can grant indulgences to all the faithful; a bishop
can only grant indulgences to those who are within his diocese,
and up to the limits imposed on him by the supreme authority
of the Roman Pontiff (Can. 349, sec. 2, ii).
The doctrine of indulgences is intimately connected with
other dogmas of the Catholic faith. When the Church remits
temporal punishment due to sin, she does not simply condone
it outright in the name of God, but she pays the debt due to
sin out of the treasure of the Church. This treasure of the
Church is made up of the satisfactions of our Lord and of his
saints. Christ and all the members of his Church form one
mystical body: " For as in one body we have many members,
but all the members have not the same office: so we being
many, are one body in Christ, and every one members one
of another." 1 "One body and one Spirit: as you are called
in one hope of your calling. One Lord, one Faith, one Bap-
tism. One God and Father of all, who is above all, and through
all, and in us all." 2 By virtue of this oneness in Christ, there
is among the faithful what is called the communion of saints.
Not only do all get the benefit of the same sacrifice and sacra-
ments, but the good works of each benefit to some extent all
the rest. The merit, indeed, which every good action possesses
1 Rom. xii 4. a Eph. iv 4-6.
THE NATURE OF AN INDULGENCE 295
with God, with a view to an eternal reward, is personal and
belongs exclusively to the doer of it; but besides meriting,
every good action has also a power of placating God and satis*-
fying for sin, as well as a power of impetrating his graces and
blessings. The satisfactory part of the good actions of Christ
and his saints was not required to satisfy for their own offences,
and it is available to satisfy for the sins of those who form with
them one mystical body. It needs, however, application to
the individual soul, and one of the ways in which this is done
is through indulgences. The dispensing of the mysteries of
God belongs to the prelates of his Church, and inasmuch as
they have jurisdiction over the faithful in this life, indulgences
are applied to them directly by the power of the keys.
Over the faithful departed who are suffering for their sins
in purgatory the Church has no jurisdiction, but as we can pray
for them, and they are helped thereby, so if the Church permits
it we can gain indulgences and apply them to the souls of the
faithful departed by way of suffrage, asking God to accept the
satisfaction offered for the holy souls (Can. 911).
3. A plenary indulgence is one by which all the debt of
temporal punishment due to a person for his sins is remitted,
while a partial indulgence, of say, forty days, remits the same
amount of temporal punishment as would have been remitted
by undergoing canonical penance for forty days according to
the ancient discipline of the Church.
Indulgences are local, if they can only be gained in a par-
ticular place, as by visiting some particular church; they are
personal, if they are attached to certain persons who fulfil
certain conditions; they are real, if they are attached to a
particular object, as to a crucifix or a rosary.
Again, they are temporary if they can only be gained within
a specified time ; if granted without any time limit, they are
perpetual.
CHAPTER II
'CONDITIONS REQUIRED FOR GAINING INDULGENCES
i. THERE must always be a just cause for granting an indul-
gence, otherwise the grantor would not be a faithful dispenser
of the mysteries of God, and he would fail in the trust com-
mitted to him by God. In practice, however, this does not
concern the faithful to whom indulgences are granted; they
may rest assured that there is always a just cause for the in-
dulgences which the Church offers for their acceptance.
2. No one can gain an indulgence unless he is a member of
the Catholic Church, and, moreover, he must have the requisite
intention, he must be in the state of grace, and he must fulfil
all the conditions prescribed for gaining the indulgence.
It is not necessary that the intention be actual ; it is sufficient
if it be virtual, so that there was the wish to gain the indulgence,
and it continues to influence the actions whose performance
is required for the purpose of gaining the indulgence. It will
be sufficient to form an intention in the morning of gaining all
the indulgences which may be annexed to any of the good
works done during the following day. Some authorities hold
that such a virtual intention is not necessary, but that an
habitual, or even an interpretative intention, will suffice. An
habitual intention is one which was formed and which has not
been retracted, but which does not influence the performance
of one's actions any longer. An interpretative intention does
not exist in reality, but it would be elicited if the agent thought
of the matter. Inasmuch as an indulgence is a grant made by
the Church to all who fulfil certain conditions, these authors
maintain that all pious Catholics who value indulgences gain
such as are annexed to their prayers and other good deeds
without any special intention. This opinion, however, though
probable, is not certain, and so it is safer in practice to follow
the other, which requires at least a virtual intention, especially
as it is doubtful whether probabilism can be used in this
matter. Canon 925, sec. 2, says that a general intention is re-
quisite, which many interpret as signifying an habitual intention.
3. The person who gains an indulgence must also be in the
state of grace, for one who is in mortal sin, at enmity with
296
CONDITIONS FOR GAINING INDULGENCES 297
God, and liable to eternal punishment, is not a fit subject for
the remission of temporal punishment due to his sins. The
Church, too, requires that those who wish to gain the indul-
gences which she offers to her children should be contrite in
heart, or, in other words, in the state of grace, recovered, if
they had fallen, by means of sacramental confession, or at least
by an act of perfect contrition. When several actions, such
as visiting a church, prayer for the Pope, confession, etc., are
prescribed for gaining an indulgence, it is not absolutely
necessary that all such actions be performed while the agent
is in the state of grace; it will be sufficient if the soul be in
the state of grace when the last condition is fulfilled and when
the indulgence is applied.
4. Finally, all the conditions laid down by him who granted
the indulgence must be faithfully fulfilled by anyone who
wishes to gain it. If the indulgence be annexed to the saying
of a prayer, the prayer must be said with the lips; it is not
sufficient to repeat it mentally. Deaf-mutes satisfy the condi-
tion by raising their minds to God in the place where public
prayers are said by others (Can. 936), and if one of the condi-
tions for gaining an indulgence is visiting a church and praying
therein for the intentions of the Holy Father, they may fulfil
this condition by visiting the church and praying mentally or
reading the prayers from a book.
The ordinary conditions prescribed for gaining a plenary
indulgence are: prayer for the intentions of the Sovereign
Pontiff, visit to a church, and confession and Holy Com-
munion.
To satisfy the condition of prayer for the intentions of the
Pope, any form of prayer which is not already of obligation
will suffice. A priest, therefore, could not satisfy this condition
by saying his breviary, to which he is already bound by the
law of the Church, but it has been decided that when indul-
genced prayers are prescribed by a confessor for sacramental
penance, the penitent may say his penance and gain the in-
dulgence at the same time. The length of prayer for the
Pope's intention is not ordinarily defined, but authors are
agreed that five Our Fathers and five Hail Marys will suffice.
The Pope's intentions are: the common good of the Church,
the propagation of the Faith, the conversion of sinners, heretics,
and schismatics, and peace and concord among Christian
peoples. To gain the indulgence it is not necessary to have
these intentions distinctly in mind ; it will be sufficient to pray
for the Pope's intentions in general.
2Q8 INDULGENCES
The prayers may be said alone or with others alternately,
and they may be said anywhere, unless it is specially prescribed
that they are to be said while visiting the church.
Unless some special church is mentioned for the visit, any
church or public oratory to which the public have free access
may be selected. Semi-public oratories of religious and other
communities will suffice (Can. 929), but private chapels will
not suffice, unless by special indult.
5. Canon 931 specially provides that for the gaining of any
indulgences whatever, when confession is required, it may
be made within the eight days which immediately precede the
day to which the indulgence is annexed, and the Communion
may be made on the eve of the same day; and, moreover,
both may also be made within the whole of the following
octave.
The faithful who are accustomed, unless they are lawfully
prevented, to go to sacramental confession at least twice a
month, or to receive Holy Communion daily with a right
intention and piously, in the state of grace, though they may
abstain from it once or twice in the week, can gain all indul-
gences, even without actual confession, whicji otherwise would
be necessary to gain them, except the indulgences of an ordinary
or extraordinary jubilee or one granted after the manner (ad
instar) of a jubilee.
If a visit to a church or oratory is required for gaining an
indulgence annexed to a certain day, the visit may be made
at any time between midday on the previous day and midnight
which terminates the day itself (Can. 923).
Canon 935 grants power to confessors to commute the good
works enjoined for gaining indulgences into other good works
in favour of those who are hindered from fulfilling them by
any lawful impediment.
The conditions enjoined may be fulfilled in any order.
6. According to the general rule, an indulgence can only
be gained once on the day designated, but not infrequently an
indulgence is granted toties quoties, and then it may be gained
as often as the conditions are fulfilled. In this case if con-
fession and Communion, or in general any good work which
is not capable of being repeated on the same day, be among
the conditions prescribed, such conditions are only fulfilled
once, and the others are repeated as often as it is desired to
gain the indulgence. When several indulgences are attached
to the same action, and this cannot be repeated, as is the case
with Holy Communion, all the indulgences may be gained by
CONDITIONS FOR GAINING INDULGENCES 299
the one action. If, however, the action enriched by several
sets of indulgences be capable of being repeated on the same
day, such as saying the rosary, as a general rule only one set
of indulgences determined by him who wishes to gain them
can be gained by performing the action once. Pius X, how-
ever, by a decree dated June 12, 1907, made an exception
to this rule in favour of rosaries enriched with the Croisiers'
indulgences, which may now be gained in reciting the rosary
cumulatively, together with other indulgences already granted
to the same rosaries.
It must frequently happen that plenary indulgences cannot
be gained in full on account of some obstacle in the way, such
as unforgiven venial sin. In such a case Canon 926 makes it
clear that according to the intention of the Church the in-
dulgence takes its effect as far as possible, and becomes in fact
a partial indulgence.
7. Almost all indulgences are now applicable to the souls
in purgatory (Can. 930). In order that they may be applied
to them in fact, the person who fulfils the conditions should
form his intention of offering them to God for the benefit of
certain souls, or for the benefit of the souls in purgatory in
general. It is a controverted point among the theologians
whether such application is infallible in its effect or not. The
difficulty is about the divine promise to accept such offerings,
some theologians holding that such a promise is implicitly
contained in the words of our Lord: " Whatsoever you shall
loose on earth shall be loosed also in heaven " ; others denying
this. The negative opinion seems to be more in accordance
with the mind and practice of the Church.
Similarly, it is a disputed question among theologians
whether one who gains an indulgence for the souls in purgatory
must himself be in the state of grace. Many hold that he
must be, as he must gain the indulgence himself before he
can apply it to the holy souls. Others do not see the necessity
of this, for such a one only fulfils the conditions, and on the
fulfilment of these the Church offers to God the corresponding
satisfactions. Both opinions are probable, but the former is
safer in practice.
8. Objects to be indulgenced should be solid and not easily
breakable. Hence pictures on paper, and hollow glass beads,
may not be indulgenced ; but beads made of solid glass, or of
iron, or wood, may be.
Objects do not lose their indulgences as long as they remain
morally the same. In a rosary the indulgences are attached
300 INDULGENCES
to the beads, not to the string, so that even though the string
be changed, or a few beads be lost and others substituted for
them, the indulgences are not lost. When a crucifix is in-
dulgenced, the indulgence is attached to the image, not to
the cross.
To prevent the danger of simony, indulgences attached to
a movable object are lost if it is sold, or if it is completely
destroyed (Can. 924, sec. 2).
CHAPTER III
THE JUBILEE
i. A JUBILEE is a plenary indulgence granted by the Pope
with greater solemnity than usual for a definite time, together
with special faculties for confessors. The first jubilee was
granted by Boniface VIII in the year 1300 with the intention
that it should be held thereafter every hundred years, but
subsequent Popes changed the period into fifty, thirty-three,
and finally into twenty-five years. This is called a greater
or ordinary jubilee, to distinguish it from the less or extra-
ordinary jubilee, which the Pope grants on some special occa-
sion, as, to celebrate his election to the papacy. A general
jubilee is granted to all the faithful, usually in the first place
at Rome, and afterward it is extended to the rest of the world;
a particular jubilee is* granted to a particular province or
religious order.
2. The conditions prescribed for gaining an ordinary jubilee
are: confession, Communion, and prayer for the Pope's inten-
tions in churches to be visited for the purpose a certain number
of times.
Confession is necessary for those who wish to gain the
jubilee even if they are not conscious of mortal sin, and the
annual confession which is prescribed by ecclesiastical law
will not suffice. If a grievous sin is inadvertently omitted
from the jubilee confession, this is nevertheless sufficient for
gaining the indulgence, but of course the sin which was for-
gotten must be mentioned in the next confession. If, after
going to confession and before fulfilling the other conditions
for gaining the jubilee, mortal sin is committed, the person
should go again to confession to gain the indulgence.
A good Communion distinct from the ordinary Easter Com-
munion is another of the conditions to be fulfilled.
At Rome the four basilicas, St Peter's, St Paul's outside
the Walls, St John Lateran, and St Mary Major, are usually
designated to be visited a certain number of times, and during
the visits prayer is to be offered up for the Pope's intention.
Outside Rome the churches to be visited are usually left to
be determined by the bishop. The visits must be made in
301
302 INDULGENCES
one day according to either the civil or the ecclesiastical method
of reckoning, or, in other words, reckoning either from mid-
night to midnight, or from the hour of vespers.
For an extraordinary jubilee, besides the above conditions,
fasting and almsgiving are also prescribed.
The fast is a strict one. A day which is not a fasting day
by ecclesiastical law must be chosen, unless the contrary is
specially conceded in the bull of indiction of the jubilee, and
then the strict fast must be observed, nor can advantage be
taken of any indult. Even those who are not bound by the
ecclesiastical law of fasting must fulfil this condition if they
wish to gain the jubilee.
The amount to be given in alms is not generally specified,
and any amount will suffice provided that it is not so small
as not to deserve the name. Religious, wives, children, and
servants, may have their obligation fulfilled for them by
superiors, husbands, parents, and masters.
Bishops and confessors receive faculties to commute all
the above conditions for ordinary and extraordinary jubilees
except prayer, confession, and sometimes Holy Communion.
For the lawful and valid use of this faculty there should always
be a just cause, and some good work of more or less equal
merit should be enjoined in place of that commuted.
3. Regulars who desire to gain the jubilee may choose a
confessor from among those, whether secular or regular, who
are approved by the bishop, or they may confess to one ap-
proved by their superiors. Nuns are sometimes empowered
to choose a confessor for the purpose of gaining the jubilee
from any priests approved by the bishop; sometimes it is
prescribed that the confessor chosen must be one of those
who are approved for the confessions of nuns. Confession may
be made to the priest thus chosen as often as the penitent
desires before the fulfilment of the last condition for gaining
the jubilee, but not afterward.
The confessor chosen for the jubilee confession has special
faculties given to him by the bull of indiction. This should
always be carefully studied in order that the confessor may
know the extent of his powers. Ordinarily, he is empowered
to absolve penitents from all censures and sins, even those that
are reserved. The cases of attempted absolution of an accom-
plice and a false charge of solicitation are generally excepted,
or power to absolve them is only granted under restriction.
The absolution would be valid if the penitent who came to
confession with the intention of gaining the jubilee afterwards
THE JUBILEE 303
changed his mind and gave up the attempt; and probably the
reservation would be removed if a reserved sin were confessed
by such a penitent, though the confession were sacrilegious,
or inculpably null and void.
Jubilee confessors have also ample faculties granted them
for dispensing from vows or commuting them, though vows
of perpetual chastity, of entering a religious order with
solemn vows, and those which have been accepted by third
parties, are usually excepted.
While the greater jubilee is being celebrated at Rome, the
special faculties granted to bishops and priests for the internal
forum are ordinarily suspended, at least with respect to peni-
tents who can make the journey to Rome.
In the same way during this time other indulgences granted
by the Pope in favour of the faithful who are living are sus-
pended, though they may all be gained for the faithful departed.
Certain special indulgences, as those for the saying of the
Angelus, those granted to the dying, and for the solemn ex-
position of the Blessed Sacrament, are excepted.
APPENDIX
A SHORT HISTORY OF MORAL
THEOLOGY
ETHICS has a special place in the Christian religion. Lactantius,
writing under the Emperor Constantine, points out this funda-
mental difference between paganism and the true religion.
Pagan religion, he says, is concerned only with external rites
and ceremonies performed in honour of the gods; it gives no
precepts of righteousness and virtue; it does not form and
cultivate men's characters. 1 On the other hand, ethics forms
an essential part of the Christian religion. Christ was called
Jesus because he came among us to save us from our sins.
This he did not only by atoning for them, but by his example,
his teaching, and his grace he showed us how to lead good
lives and enabled us to do it. He came to do and to teach,
so that not only his words but his actions, too, were lessons
to us in conduct. He proposed himself to us as the Way by
which we should walk; he bade us follow his example; he
taught us to learn of him meekness, humility, and all virtues.
In him God, our Creator and Lord, was revealed to us; he
is our first beginning and last end. To him we must refer
and order our whole lives and our every action. We are his.
stewards, and when life comes to an end each of us will be
called upon to render a strict account to him, as our judge,
of every thought, word, and action of our lives. Heaven will
be the reward of the faithful servant, eternal suffering in hell
will be the just punishment of the wicked.
Before finally quitting the earth our Lord founded his Church,
a hierarchical society of men, to continue the work which he
had begun for the sanctification and salvation of the whole
human race. His last solemn commission to his Apostles
was a command to teach men to observe all that he had com-
manded ; certain truths had been revealed to them concerning
God, as well as moral jrules for their guidance, but even the
truths concerning God were not merely speculative ; they, too,
were revealed for the sanctification and salvation of men. A
duty of submission of the intellect, under pain of eternal
1 De Divinis Instit., iv, c. 3.
ii. 305 20
306 A SHORT HISTORY OF MORAL THEOLOGY
damnation, was laid on all who heard the Gospel preached.
The basis of Christian morality thus rests firmly established
on the word of God, requiring unwavering faith, not on the
uncertain and shifting sands of human opinion. That Gospel
contained not only moral precepts which are obligatory on all,
but counsels also of great perfection which those who had the
moral strength were encouraged to adopt as rules for the
conduct of their lives. The perfect holiness of God himself
was held up as the model which they were to imitate and the
lofty ideal at which they were ever to aim.
This revelation of Christ was committed to the Church as
a sacred deposit to be faithfully kept, guarded from all ad-
mixture of error, and diligently preached to men for their
instruction, guidance, sanctification, and salvation. The
Catholic Church has always understood that this was the object
of her foundation by Jesus Christ. That was her mission,
to preach the Gospel, to keep the deposit of faith, to teach
what Christ had revealed, and not to allow it to be changed
or corrupted even by an angel from heaven. It is the boast
of the Catholic Church that by the assistance which Christ
promised her, through the constant guidance of the indwelling
Spirit of Truth which he sent down upon her, she has faith-
fully accomplished her task. In spite of enemies within and
without, in defiance of the hostile powers of hell and of the
unbelieving world, she has persisted through the ages in
preaching in season and out of season the divine revelation
which was committed to her faithful keeping. At first sight
it might seem that no history of such a system of doctrine is
possible. History is the scientific narration of the varying
fortunes and changes which befall the subject of it. What
history can there be of a system of doctrine which has always
been the same ?
The Christian revelation as taught by the Catholic Church
does indeed always remain the same in itself, objectively, as
it was completed when the last of the Apostles died. This
revelation, and nothing else, the Church was commissioned
to keep and to preach to the end of time for the salvation of
men. It is the Church's greatest boast, as it is her highest
claim to our gratitude, that she has ever preserved unsullied
througtT the ages the divine teaching of Jesus of Nazareth.
No man ever taught like him. The moral doctrine which he
inculcated by word and by deed is the loftiest ideal of conduct
which has ever been manifested to the world. It cannot be
improved upon, and it is impious to attempt to change it. The
A SHORT HISTORY OF MORAL THEOLOGY 3?
Catholic denies that it has been changed in the Catholic Church.
Non- Catholic historians of Christian morals profess to discover
instances of change, but this is due to their own philosophical
or religious presuppositions. Thus when the Lutheran
Dr. Luthardt discovers in the Didachd, written, as he acknow-
ledges, at the end of the first century, " the beginnings of a
false view of works," 1 we reply that the same view of works
appears in the documents that make up the New Testament,
and that it is not false. Lecky discovered a change of view as
to the lawfulness of taking human life when Christianity
became the official religion of the Roman Empire. 2 In proof
of this he quotes Lactantius and one or two other Fathers
who held that it is never lawful to take human life. It would
not be difficult to quote instances of Christian writers up to
our own days who have held the same doctrine, and one might
deduce therefrom an argument to show either that Christian
morality had progressed, or deteriorated, or had remained
stagnant for nineteen centuries, according to the exigencies of
one's philosophical system. Harnack discovers the sources
of Catholic monachism in the writings of St Methodius. 3 The
Catholic sees them writ large in the Gospel of St Matthew.
These instances will show why the Catholic cannot accept
the accounts of growth, change, and decay which are given
in many so-called histories of Christian morals. Nevertheless,
he allows that there is a progress and development which
admits of being traced historically. The Catholic Church
has always been explicit on this point. After teaching that
the revealed doctrines of the Faith were not proposed by God
to man's intellect to be improved upon like some philosophical
system, but were committed to the Church as a divine deposit
to be faithfully kept and infallibly explained, the Council of the
Vatican could find no better terms in which to describe true
development of that doctrine than those which had been used
by St Vincent of Lerins in the fifth century.
" Therefore," it says, " let the understanding, knowledge,
and wisdom of each and of all, of individuals as well as of the
whole Church, increase and make much and great progress
through the ages and the centuries; but only in its own line,
that is, in the same truth, in the same sense, and in the same
thought.' 54 Change in Christian dogma and morals we refuse
1 History of Christian Ethics, p. 117.
2 History of European Morals, ii, p. 42.
3 History of Dogma, iii, p. no.
4 Vatican, sess. iii, c. 4.
308 A SHORT HISTORY OF MORAL THEOLOGY
to accept or to acknowledge ; we readily admit that there has
been and ought to be development. The precepts of Christian
morality have not always been equally well understood; what
was obscure and uncertain has been made more clear and
certain. The existence of different conditions, circumstances,
and wants, in different ages and countries, necessitated some
change in the adjustment of the teaching to the varying sur-
roundings. New duties arose from new positive legislation.
Besides, the science of Christian morals is not a mere exposi-
tion of the moral precepts of the Gospel and of the positive
legislation of the Church. Books have been written containing
such an exposition in the very words of Scripture, like the
Speculum of St Augustine, and the Scintilla attributed to
Venerable Bede, 1 but such as these are not works of moral
theology. The science of moral theology arranges its subject-
matter in an orderly and logical way; it shows the grounds
and the reasons of the doctrine, it harmonizes part with part
so as to form a compact and systematic body of doctrine. All
this is the work of time and of many minds, and it admits of
historical treatment. In the brief space at our disposal we
propose to trace at any rate the chief stages in the development
of Catholic moral theology. Our history may conveniently
be divided into three periods; the first will embrace the
age of the Fathers, the second that of the scholastics, the
third will be the modern period.
SECTION I
The Patristic Period
The end for which Jesus Christ established his Church was
the sanctification and salvation of souls. This end the Church
was to obtain chiefly by preaching the Gospel which her
Founder had revealed and by administering the sacraments
which he had instituted. 2 Men were to be sanctified and
prepared for eternity by holy living through the grace of God
communicated to them principally by means of the sacraments.
The Gospels contain a short summary of the general teaching
of Jesus Christ; this is developed somewhat in certain direc-
tions in ^ the other writings of the New Testament, but the
preachers of the Word soon found it convenient to have by
them brief summaries of the moral teaching of our Lord by
itself. This need was met by such works as the Didache,
1 Migne, P.L. 88, 598. 2 Matt, xxviii 19, 20.
A SHORT HISTORY OF MORAL THEOLOGY 309
or Teaching of the Twelve Apostles, composed about the end
of the first century, and the Pastor of Hermas, written a little
later. It would be utterly impossible to give even an outline
of the ethical works of all the Fathers of the Church. Together
they form a very voluminous and complete course of moral
theology, and more than one such course has been put together
by simply printing a consecutive selection of their works.
Thus in 1791 an Italian priest, Angelo Cigheri, published at
Florence his Veterum Patrum Theologia Universa, in thirteen
volumes quarto, of which the three last are devoted to morals.
A fairly complete catalogue of ethical works by the Fathers
will be found in the indices of Migne's Patrology, arranged
under the separate headings which figure in our modern
manuals of moral theology. All that we can do here is to
select a few typical works which exhibit the gradual develop-
ment of the science of Christian ethics. The Didache may
be looked upon as the first handbook of morals which has
come down to us, and it will be worth while to give a short
analysis of its contents.
This first handbook of moral theology begins with the first
general principle of ethics. All righteousness is summed up
in the general precept to avoid evil and do good. The doing
of good consists in the observance of the two great command-
ments of love for our God and for our neighbour. The golden
rule is added to the statement of the general first principles
of morality. " There are two ways," we read, " one of life
and one of death; and there is much difference between the
two ways. Now the way of life is this : First thou shalt love
God that made thee; secondly, thy neighbour as thyself; and
all things whatsoever thou wouldest should not happen to
thee, neither do thou to, another." The rest of the first chapter
is occupied with a development of the precept of love for our
neighbour, expressed for the most part in the language of the
Sermon on the Mount. The second chapter enumerates
some of the principal negative duties toward our neighbour.
A similar enumeration occupies the third chapter, but here
there is an attempt to give the reason for the different pro-
hibitions, as, for example: " Be not prone to anger, for anger
leads to murder; neither a zealot, nor contentious, nor pas-
sionate, for from all these things murders are begotten." In
the fourth chapter are set down the duties towards preachers
of the Gospel, of making peace, of judging righteously, of
almsgiving; duties toward parents, children, servants; of
avoiding hypocrisy, and not adding to or taking away from
3io A SHORT HISTORY OF MORAL THEOLOGY
the precepts of the Lord which they had been taught. The
chapter concludes with, " This is the way of life."
The fifth chapter consists of a long enumeration of sins, and
ends with the prayer, " May ye be delivered, children, from
all these."
In the sixth chapter there is a warning against being led
away from this teaching by anyone, for such a one would not
teach according to God. A distinction is drawn between
what is required for perfection and what is morally possible.
The faithful are bidden specially to beware of what has been
sacrificed to idols.
A brief instruction on Baptism occupies the seventh chapter,
and in the eighth Christians are taught to fast on Wednesdays
and Fridays, so that their fasting- days may be different from
those of the Jews, who fasted on Mondays and Thursdays.
They are told to say the Our Father three times a day.
The ninth and tenth chapters give instructions on the celebra-
tion of the Eucharist, while the two following deal with the
way in which prophets and strangers should be received.
The thirteenth chapter prescribes the offering of firstfruits.
In the next chapter the faithful are instructed to meet together
on every Lord's Day, to offer the eucharistic sacrifice, after
confessing their sins, so that their sacrifice may be pure.
Enemies, too, should be reconciled lest the sacrifice be defiled.
It was of this sacrifice that Malachias prophesied. The
fifteenth chapter deals with the election of bishops and deacons
and the respect which is due to them. The duties of fraternal
correction, of prayer and almsdeeds, are enjoined as they are
contained in the Gospel of our Lord. The last chapter con-
tains an exhortation to watch, and inculcates the necessity of
faith and perseverance, for Antichrist will appear and seduce
many. The treatise concludes with a short description of the
signs of the last day.
The whole of the second book of the Pastor of Hermas is
a document of early Christian moral teaching very similar to
the Didachd, but more attempt may be observed in it to show
the connection between one prohibition and another, and to
give reasons and motives for their observance.
A great advance is observable in the catechetical works of
Clement of Alexandria. They are almost exclusively devoted
to moral teaching, which their learned author illustrates and
confirms by constant quotations from the Greek classical
authors. With an enthusiastic and personal love for Jesus
Christ, and faith in his teaching as a divine and full revelation
A SHORT HISTORY OF MORAL THEOLOGY 3"
of the truth to men, he combines a high esteem for reason
and philosophy. According to Clement, philosophy was the
pedagogue of the pagan world, preparing it for Christ and
leading it to him, as the law did the Jews. Philosophy is the
handmaid of theology, he says, and the dictates of reason are
but the promptings of the Word which illuminates every man
that cometh into the world. This, of course, is but a develop-
ment of ideas which we find in the Scriptures of the Old and
New Testament, and it is a natural consequence of Christian
teaching concerning God and his relation to man and to the
world. It is a very superficial view which regards the action
of Clement and other Fathers in the use they made of reason
and philosophy as a corrupting influence in Christian teaching.
With them, as with the scholastics in the Middle Ages, that
action was the necessary result of a firm faith in the Gospel
message, and the natural desire to understand it and penetrate
its full meaning as far as possible. It was Fides quaerens
intellectum, the moving spirit of Catholic theology from the
beginning. Better than any lengthy exposition, an extract or
two from Clement will show how far the science of moral
theology had progressed at the end of the second century.
The following extract is taken from an apologetic work entitled
An Exhortation to the Heathen.
" Wherefore, since the Word himself has come to us from
heaven, we need not, I reckon, go any more in search of human
learning to Athens and the rest of Greece, and to Ionia. For
if we have as our teacher him that filled the universe with his
holy energies in creation, salvation, beneficence, legislation,
prophecy, teaching, we have the Teacher from whom all
instruction comes; and the whole world, with Athens and
Greece, has already become the domain of the Word. For
you, who believed the poetical fable which designated Minos
the Cretan as the bosom friend of Zeus, will not refuse to
believe that we who have become the disciples of God have
received the only true wisdom; and that which the chiefs of
philosophy only guessed at, the disciples of Christ have both
apprehended and proclaimed." 1
The next extract, from the Pcedagogus, a work containing
instructions for recent converts, shows the place which reason
or conscience holds in Christian ethics.
" Everything that is contrary to right reason is sin. Accord-
ingly, therefore, the philosophers think fit to define the most
generic passions thus: lust, as desire disobedient to reason;
1 Exhortation to the Heathen, c. n.
A SHORT HISTORY OF MORAL THEOLOGY
fear, as weakness disobedient to reason ; pleasure, as an elation
of the spirit disobedient to reason. If, then, disobedience in
reference to reason is the generating cause of sin, how shall
we escape the conclusion that obedience to reason the Word
which we call Faith, will of necessity be the efficacious cause
of duty ? For virtue itself is a state of the soul rendered
harmonious by reason in respect to the whole life. Nay, to
crown all, philosophy itself is pronounced to be the cultiva-
tion of right reason; so that, necessarily, whatever is done
through error of reason is transgression, and is rightly called
sin." 1
The Stromata, or Miscellanies, are a collection of materials
for the ethical instruction and training of the Christian theo-
logian. The philosophical and theological detail to which
Clement descends in the treatment of his subject may be
illustrated by an extract from the fourteenth chapter of the
second book of the Stromata, on the different ways in which
an act may be involuntary. The matter, of course, belongs
to the treatise on Human Acts, sometimes said to be the last
treatise which was added to our manuals of morals.
" What is iunvoluntary is not matter for judgement. But
this is twofold what is done in ignorance, and what is done
through necessity. For how will you judge concerning those
who are said to sin in involuntary modes ? For either one
knew not himself, as Cleomenes and Athamas, who were mad;
or the thing which he does, as Aeschylus, who divulged the
mysteries on the stage, who being tried in the Areopagus was
absolved on his showing that he had never been initiated.
Or one knows not what is done, as he who has let off his
antagonist, and slain his domestic instead of his enemy; or
that by which it is done as he who in exercising with spears
having buttons on them, has killed someone in consequence
of the spear throwing off the button ; or knows not the manner
how, as he who has killed his antagonist in the stadium, for
it was not for his death but for victory that he contended ; or
knows not the reason why it is done, as the physician who
gave a salutary antidote and killed, for it was not for this pur-
pose that he gave it, but to save." 2
As yet no attempt had been made in the Church to write
a systematic treatise of morals by reducing the various virtues
and vices to logical order under appropriate general principles.
This step was taken by St Ambrose at the end of the fourth
century. This great Father and Doctor of the Church com-
1 Pcedagogus, i, c. 13. 2 Stromata, ii, c. 14.
A SHORT HISTORY OF MORAL THEOLOGY 313
posed his work De Officiis for the instruction of the clergy
of his church of Milan. He expressly tells us that he followed
Cicero's work with the same title as his pattern. Cicero wrote
his book for the instruction of his son; St Ambrose desired
to write for the instruction of his spiritual children. Although
he followed Cicero closely in the arrangement and treatment
of the matter, yet he never loses sight of what appears to have
been the chief motive that he had in view in the composition
of his work namely, to demonstrate the superiority of Christian
over pagan ethics.
The work is divided, like Cicero's, into three Books. In
the first he treats of what is honourable and dishonourable.
He points out that the philosophic distinction between ordinary
and perfect virtue has its counterpart in the Gospel, which-
distinguishes between what is matter of strict precept and of
counsel. Certain elementary duties, as those toward parents
and elders, are touched on, and then follows a discussion on
the four cardinal virtues. The second Book treats of what is
expedient with reference to eternal life. The third Book
treats of what is honourable and expedient in conjunction, and
the author has no difficulty in reconciling these conflicting
principles according to Christian teaching. " For," he writes,
" I said that nothing can be virtuous but what is useful, and
nothing can be useful but what is virtuous. For we do not
follow the wisdom of the flesh, whereby the usefulness that
consists in an abundance of money is held to be of most value,
but we follow the wisdom which is of God, whereby those,
things which are greatly valued in this world are counted but
as loss. For this Karopdcof^a, which is duty carried out en-
tirely and in perfection, starts from the true source of virtue.
On this follows another or ordinary duty. This shows by its
name that no hard or extraordinary practice of virtue is in-
volved, for it can be common to very many." 1 This principle
of perfection is then applied to the pursuit of gain and other
questions.
A very famous book on morals, somewhat more restricted in
scope than the De Officiis of St Ambrose, is the Pastoral Care
of St Gregory the Great. This, together with the same
author's Morals on Job, was a favourite textbook in the Middle
Ages. It lays down the qualities required in those who have
the cure of souls, how they themselves should live, how they
should instruct and admonish those subject to their authority.
The book was brought to England by St Augustine and trans-
1 De Officiis, iii, c. a.
3H A SHORT HISTORY OF MORAL THEOLOGY
lated into English by King Alfred for the benefit of the bishops
and priests of his kingdom.
A word must here be said on Christian asceticism, which
has been so utterly misunderstood and misrepresented by
such writers as Lecky and Harnack, and whose true relation
to Christian morals is so seldom perceived by non-Catholic
authors.
Christ our Lord expressly taught that renunciation of self,
of the world with its riches and pleasures, was in a certain
sense a necessary condition of discipleship. This renuncia-
tion, however, admitted of different degrees, as is also plain
from the Gospels. Some were called only to spiritual poverty
and detachment, and these hoped to save their souls by re-
maining in the world without being of it. Outwardly they
lived much like other people, but their affections were detached
from this world and centred on God and eternity. They went
to heaven by the way of the commandments. Others, on the
contrary, voluntarily embraced the counsels of poverty, chastity,
and obedience, given by our Lord to those who were called,
and who felt that they had the spiritual strength to follow the
call. They made a special profession of following the counsels,
and were assigned a place of honour in the Christian assemblies,
but at first they seem to have lived in the bosom of their families.
They soon, however, began to find it very difficult to persevere
in their adopted form of life while exposed to the distractions
and temptations of the world, and this, together with the violence
of the persecutions, drove them into the desert. There they
lived at first solitary lives as hermits, but before long they
began to come together and put themselves under the authority
of some ancient Father of the desert renowned for his prudence
and sanctity. Their aim was to subdue their passions and
ascend the heights of Christian perfection. The task is
notoriously difficult both in theory and in practice, and many
mistakes were made. The Church had not yet drawn up her
minute code of laws for the regulation of religious life. Those
writers, however, who industriously pick out the mistakes and
the exaggerations of indiscreet fervour, and piece them together
to produce a picture of Christian monachism and asceticism,
only succeed in producing a caricature. To convince one's self
of this -it is sufficient to dip into the Institutes of Monasteries
and the Conferences of Cassian, who was in 'the middle of a
long life in the year 400. In the twelve Books of his Insti-
tutes Cassian describes the dress of the monks, their method
of singing the divine office, the training of postulants and
A SHORT HISTORY OF MORAL THEOLOGY 315
novices, and then he devotes the last eight Books to a minute
account of the nature, causes, and remedies of the eight prin-
cipal vices which bar the way to the summit of Christian
perfection. He maps out every portion of the pilgrim's
progress to his heavenly country, and shows what dangers
and obstacles he will meet by the way. In brief, he says,
progress toward perfection begins with the fear of God, from
which arises a salutary sorrow for sin, which leads to renuncia-
tion and contempt of the world; this begets humility, from
which springs mortification of the will, and by this all vices
are subdued and extirpated. Then all virtues begin to flourish
in the soul, which thus arrives at purity of heart and the per-
fection of apostolic charity. 1
The vices to be overcome are classed under eight different
heads by Cassian, and he says that the classification was ad-
mitted by all. 2 These principal or capital vices are typified
by the seven people, whom the Israelites were commanded by
God to extirpate when they came into the land of promise.
Egypt makes the eighth, from which they had been delivered,
and which, Cassian says, typifies gluttony. From this vice
the monk is indeed delivered by his abandoning the world
for the desert, but he may not extirpate it altogether ; he should
aim only at curbing its excesses. Gregory the Great adopted
in substance the teaching of Cassian on the capital vices, but
by making pride the queen of all the rest, and placing it in
a category by itself, the other seven became the seven deadly
sins which with their daughter vices were so famous in the
literature of the Middle Ages, and figure in the books of morals
and in the catechisms of Christian doctrine to the present day.
To show how conservative the Catholic tradition has been,
even in the expression of doctrine, I will give the following
passage in St Gregory's own words :
" Ipsa namque vitiorum regina superbia cum devictum plene
cor ceperit, mox illud septem principalibus vitiis, quasi qui-
busdam suis ducibus devastandum tradit. Quos videlicet
duces exercitus sequitur, quia ex eis proculdubio importunae
vitiorum multitudines oriuntur. Quod melius ostendimus, si
ipsos duces atque exercitum specialiter, ut possumus, enu-
merando proferamus. Radix quippe cuncti mali superbia
est, de qua, Scriptura attestante, dicitur : Initium omnis peccati
est superbia (Ecclus. x 15). Primae autem ejus soboles, septem
nimirum principalia vitia, de hac virulenta radice proferuntur,
1 De Ccenobiorum Institutis, lib. iv, c. 43.
2 Collatio v, c. 1 8.
316 A SHORT HISTORY OF MORAL THEOLOGY
scilicet inanis gloria, invidia, ira, tristitia, avaritia, ventris
ingluvies, luxuria. Nam quia his septem superbiae vitiis nos
captos doluit, idcirco Redemptor noster ad spirituale libera-
tionis proelium spiritu sepitformis gratiae plenus venit.
" Sed habent contra nos haec singula exercitum suum.
Nam de inani gloria inobedientia, jactantia, hypocrisis, con-
tentiones, pertinaciae, discordiae, et novitatum praesumptiones
oriuntur. De invidia, odium, susurratio, detractio, exsultatio
in adversis proximi, afflictio autem in prosperis nascitur. De
ira, rixae, tumor mentis, contumeliae, clamor, indignatio,
blasphemiae proferuntur. De tristitia, malitia, rancor, pusil-
lanimitas, desperatio, torpor circa praecepta, vagatio mentis
erga illicita nascitur. De avaritia, proditio, fraus, fallacia,
perjuria, inquietude, violentiae, et contra misericordiam
obdurationes cordis oriuntur. De ventris ingluvie, inepta
laetitia, scurrilitas, immunditia, multiloquium, hebetudo
sensus circa intelligentiam propagantur. De luxuria, caecitas
mentis, inconsideratio, inconstantia, praecipitatio, amor sui,
odium Dei, affectus praesentis seculi, horror autem vel des-
peratio futuri generantur. Quia ergo septem principalia vitia
tantam de se vitiorum multitudinem proferunt, cum ad cor
veniunt, quasi subsequentis exercitus catervas trahunt. Ex
quibus videlicet septem quinque spiritalia, duoque carnalia
sunt." 1
The Conferences of Cassian are represented by him as the
teachings of celebrated abbots on various questions of the
spiritual life. They are partly speculative, partly practical.
There are twenty-four in all, each being divided into a greater
or less number of chapters. These two works have provided
an ample store of moral and ascetical doctrine for all subsequent
Catholic writers on the subjects treated in them.
A large portion of moral theology is taken up with the duties
arising from the positive legislation of the Church. In this
legislation we have the practical application of Christian moral
principles to the varying requirements of time and place, and
change and variety are here conspicuous. With the establish-
ment of the Christian religion the positive precepts of the
Mosaic law ceased to be binding, but the Church received
from her divine Founder authority to make new laws for the
sanctification and salvation of her children. The Apostles
used this legislative authority, as we see from the Epistles of
St Paul, especially from those to Timothy and Titus, and
within twenty years after the Ascension we find them legis-
1 Moralium, lib. xxxi, c. 45.
A SHORT HISTORY OF MORAL THEOLOGY 317
lating in the Council of Jerusalem on the disputed question of
legal observances. The decree which we have in the Acts 1
was a true positive law imposing a new obligation on the faith-
ful concerned, as long as the peculiar circumstances of the
time rendered its observance desirable and necessary. 2 This
council of the Apostles formed the type and pattern for the
oecumenical and provincial councils of the Church which were
to be held in the future. Innumerable laws and regulations
have been enacted by these, affecting Catholic life, discipline,
and worship. The bishops, too, as successors of the Apostles,
have continued in all ages to exercise the legislative authority
committed by them to God and the Church. The Roman
Pontiffs, especially, in the exercise of their jurisdiction over
the whole Church in succession to Blessed Peter, have in all
ages made wise laws for the peace and prosperity of the Christian
people. As instances of this action, of the Popes in the early
centuries may be mentioned St Clement's first epistle to the
Corinthians in the first century, St Victor's decision about the
observance of Easter in the second century, St Stephen's
about the baptism of heretics in the third, and similar action
on the part of Popes Liberius, Damasus, and Siricius. Sub-
sequently papal decisions became frequent and notorious.
Collections of the decisions issuing from all these sources of
positive law began to be made in very early times. Of these
some have survived the ravages of time. The Didascalia
of the Apostles may, in the judgement of the learned, be ascribed
to the first half of the third century, and the so-called Con-
stitutions of the Apostles^ together with the Canons of the
Apostles, to the early part of the fifth century. The materials
of which these collections are composed are, of course, still
more ancient. At the beginning of the fourth century the
decrees of the councils were collected and arranged at first
in chronological order in the East. At the beginning of the
sixth century systematic collections arranged under suitable
titles began to appear. Of these early collections of canons
the most celebrated is that of John the Scholastic. In the
West, Dionysius Exiguus made his translation of Greek canons
into Latin about the year 500. A copy of this collection was
presented by the Pope to Charlemagne when he was in Rome,
and he caused it to be received and approved by the clergy
of his empire in 802 at the great Council of Aix la Chapelle.
Collections of Church laws continued to grow in number and
1 Acts xv 28, 29.
It ceased to bind in the Latin Church about the ninth century.
318 A SHORT HISTORY OF MORAL THEOLOGY
in bulk until in the twelfth century the monk Gratian
issued his Decretum, which became the most famous of them
all, and still forms the first volume of the Corpus Juris Canonici.
It contains some 4,000 decisions on law and morals taken from
the decrees of Popes, the canons of councils both general and
particular, the opinions of the Fathers, and even from the
civil law.
No attempt, of course, can be made in this short sketch
to trace the varying phases through which the innumerable
positive laws of the Church have passed. It will be sufficient
for our purpose to trace in outline those chief precepts which
bind all Catholics and which are specially known as the precepts
of the Church. They are usually reckoned six in number:
the due observance of Sundays and feast-days, the days of
fasting and abstinence, confession and Communion, the support
of pastors, and the prohibition of marriage within certain
degrees of kindred and of its solemnization at certain times
of the year.
The observance of the Sunday and its substitution for the
Sabbath appears to be due to apostolic institution. There
are traces of it in the New Testament; in the Didacht the
faithful are bidden to come together on the Lord's Day, as
it was called even then in honour of the Resurrection, and
offer the eucharistic sacrifice after confessing their sins. In
the second century the custom of observing the Lord's Day
was universal throughout the Church. The chief duty to be
performed on that day was to hear Mass. Very soon particular
provincial laws began to be enacted urging the obligation and
imposing penalties on transgressors. At the beginning of the
fourth century the Council of Illiberis in Spain decreed that
anyone who might be absent from Mass on three successive
Sundays should be deprived of Communion. The Council
of Agde at the beginning of the sixth century prescribed that
all were to hear an entire Mass on Sunday and not leave until
after the blessing of the priest on pain of a public reprehension
by the bishop.
It was natural that when Sunday became the Christian
Sabbath it should be kept much in the same way as the Jews
kept their Sabbath. While knowing from the teaching of
our Lord .himself that pharisaic exaggeration was to be avoided
in this matter, and from St Paul that the sabbatical rest was
no longer of obligation, still St Caesarius of Aries in the sixth
century expressly says that the Doctors of the Church decreed
to transfer all the honour of the Sabbath to the Lord's Day.
A SHORT HISTORY OF MORAL THEOLOGY 319
The very necessity of hearing Mass on that day made a certain
abstention from work also necessary. Tertullian testifies to
the Christian custom of his day in this respect. Constantino
prescribed that judges and artisans in towns should abstain
from work on the Sunday, but that agriculture should be
allowed on account of necessity. The strictness with which
the Sunday repose was observed varied somewhat according
to time and place in the period with which we are dealing.
Besides the Sunday other feast-days began gradually to be
observed in the same manner by hearing Mass and abstaining
from servile work. Easter and Pentecost were assigned to
movable Sundays, but the days on which renowned martyrs
suffered for the Faith, those on which churches were dedicated,
Ascension Day, Christmas Day, and the Epiphany, were soon
added to the list. The letter of the Church of Smyrna con-
cerning the martyrdom of St Polycarp in the middle of the
second century expresses the intention of celebrating the
anniversary of the day of martyrdom with joy, both in memory
of those who had suffered and as a preparation for those who
survived. 1
As the Christian Church took over the Jewish Sabbath but
changed the day on which it was observed and rejected the
exaggerations of the Pharisees in its observance, so, too, it
adopted the Jewish practice of fasting at stated times. As we
have seen from the Didachd, the fast of Monday and Thursday
was changed into one on Wednesday and Friday. The obliga-
tion of fasting on all Wednesdays and Fridays ceased almost
entirely about the tenth century, but the fixing of those days
by ecclesiastical authority for fasting, and the desire to sub-
stitute a Christian observance at Rome for certain pagan rites
celebrated in connection with the seasons of the year, seem
to have given rise to our Ember Days. In the time of St Leo,
in the middle of the fifth century, the Ember Days were a
settled institution, though the time at which they fell varied
somewhat at different times and in different places.
The earliest indication that we have of the fast of Lent is
contained in a short extract from Irenaeus which has been pre-
served for us by Eusebius. 2 Writing to Pope Victor about the
middle of the second century, St Irenaeus says that the con-
troversy in the East was not merely about the proper time
of celebrating Easter but also about the manner of fasting.
" For some think," he says, " that they ought to fast only one
1 Cf. A, Villien, Histoire des Commandements de I'jSglise, 1909.
2 Historia Ecclesiastica, v, c. 24.
320 A SHORT HISTORY OF MORAL THEOLOGY
day, some two, some more days; some compute their day as
consisting of forty hours night and day; and this diversity
existing among those that observe it is not a matter that has
just sprung up in our times, but long ago among those before
us, who, perhaps not having ruled with sufficient strictness,
established the practice that arose from their simplicity and
inexperience, and yet with all these maintained peace, and we
have maintained peace with one another ; and the very difference
in our fasting establishes the unanimity of our faith." At the
time this was written the Lenten fast was obviously very short,
and there was no uniformity even in its duration. Tertullian,
fifty years later, refers to the Lenten observance as the fulfil-
ment of the words of our Lord : " But the days will come
when the bridegroom shall be taken away from them; then
shall they fast in those days."
The first allusion to a period of forty days' fast occurs in
the fifth canon of the Council of Nicaea (325). In the time
of St Leo in the fifth century the period was sufficiently well
established to be referred by him to apostolic institution.
The period was six weeks, but omitting Sundays the actual
fasting days were only thirty-six in number. The four days
before the first Sunday of Lent were added sometime in the
seventh century. The fasts assigned to certain vigils arose
from the practice of the early Christians of assembling on the
eve of a feast and spending the night in prayer, fasting, and
reading the Scriptures. By degrees Matins took the place of
the night office, and the vigil office was moved back to the
Saturday morning, as we see to this day from the morning
office of Holy Saturday. The fast was thus prolonged through
the Saturday till after the morning office of the feast of the
next day.
The fast which used to be observed on the rogation days
took its rise in France at the close of the fifth century, and by
degrees spread to other Churches. The interrupted fast of
Advent was introduced as a preparation for Christmas toward
the end of the fourth century. The manner of fasting has
varied greatly at different times and in different places. At
first the fast seems to have been absolute and continuous.
During the days of the bridegroom's absence the faithful
neither- ate nor drank anything. When the period was length-
ened such a total fast became impossible, but at least in the
East food was restricted on fast days to one meal of bread,
salt, and water, taken in the evening, or at least not before
three in the afternoon. In the time of St Gregory fish was
A SHORT HISTORY OF MORAL THEOLOGY 321
allowed at the single meal in the West. Flesh meat was never
allowed on fasting days.
The essence of fasting is still placed by theologians in the
single meal, but many relaxations have crept in by degrees.
The monks while listening to a Collatio of Cassian before going
to bed introduced the practice of drinking an acidulated liquor
called posca. By degrees fruits and lighter kinds of food in
limited quantity were added, and when about the thirteenth
century the full meal began to be taken at twelve midday, the
evening collation became an established practice.
In the thirteenth century it was an accepted principle that
liquid does not break the fast, and this became the source of
another relaxation. A little wine, or coffee, or chocolate, was
taken sometimes in the morning, with candied fruits (elec-
tuarid) on occasion. The practice was not condemned when
the Sacred Penitentiary was asked about it in 1843, provided
that the solid food taken then did riot exceed two ounces in
weight.
At first all seem to have fasted except children and those
who were sick. St Thomas's opinion that those who are still
growing are not bound to fast, and that in general the period
of growth lasts till the completion of the twenty-first year, has
prevailed. Exemptions in favour of workmen and others were
soon admitted, and toward the close of the Middle Ages dis-
pensations from the law of fasting began to. be granted. The
Lenten indult was an established custom before the new Code
came into force.
The precept of abstinence from flesh meat which is still
observed on Fridays is a survival of the obligation of fasting
on that day which obtained in the primitive Church. As we
have seen, the Didachd prescribed fasting on all Wednesdays
and Fridays, and to this fast all the faithful except mere children
and the sick were formerly bound. About the tenth century
the obligation of the Friday fast was reduced to one of absti-
nence from flesh meat, and the Wednesday fast, after being
similarly mitigated, gradually disappeared altogether.
While in the East Saturday was observed as a festival in
honour of the creation, 1 at Rome and in other Churches of
the West it began in early times to be observed as a fasting
day. On account of the difference of discipline on this point
great difficulties arose in the fourth century, as we know from
the correspondence of St Augustine and St Jerome. St Am-
brose said that he kept festival on Saturday when he was at
1 Apostolic Constitutions, vii, 33.
II. 21
3 22 A SHORT HISTORY OF MORAL THEOLOGY
Milan and a fast when at Rome, and he advised St Augustine
to follow the same rule. About the eleventh century the
Saturday fast was reduced to an obligation of abstinence, and
this was the common law of the Church until the new
Code of Canon Law came into force. A dispensation
from abstinence on Saturdays, the feast of St Mark, and on
Rogation Days was granted for England by a rescript of
Propaganda, May 29, 1830.
The Sundays in Lent were never observed as fasting days,
but they early became days of abstinence as they remained
till the new Code came into force on May 19, 1918.
Annual confession and Communion was first made a positive
universal law of the Catholic Church in the Fourth Lateran
Council (1215). As we know from the Gospel of St John, 1
both confession and Communion were prescribed by our Lord,
but he determined neither precept in detail. The practice
of the different Churches in the early ages was various in
respect to both precepts. We will first trace in outline the
history regarding the precept of annual Communion.
From the earliest times, as we have seen, Mass was cele-
brated for the assembled faithful on Sundays, and all who
were present appear to have received Holy Communion. In
some places it was the practice for the faithful to take home
with them consecrated particles and communicate themselves
therewith out of Mass. Many at Rome, in Spain, and in
Africa received Communion daily. This was a common
practice at the end of the fourth century, as we learn from the
letters of St Jerome and St Augustine. The latter interprets
the daily bread for which we ask in the Lord's Prayer as Holy
Communion. The Council of Agde (506) decreed that those
who did not communicate at least on the feasts of the Nativity,
Easter, and Whit- Sunday were not to be reckoned as Catholics.
In subsequent centuries this became a general rule in the
Western Church ; in the East, according to Theodore of Canter-
bury, the law was much stricter. The Greeks, he says, both
laity and clerics, communicate every Sunday, and anyone who
omits to do so on three Sundays is excommunicated. A
synod held (747) at Cloveshoe in England prescribed that inno-
cent youths and those in whom years had cooled the ardour
of passion should be exhorted to communicate very frequently.
A synod held under St Patrick in the fifth century decreed that
the Eucharist was to be received at all events at Easter, and
that anyone who neglected this duty was not a member of the
1 John vi 54.
A SHORT HISTORY OF MORAL THEOLOGY 323
Church. Robert Pullen, an Englishman who wrote in the
middle of the twelfth century, tells us that in his day some
communicated more frequently, others less so, but that even
laymen followed the rule of the Fathers and communicated
at least three times a year. So that when the Lateran Council
established the universal law that all who had come to years
of discretion were bound to communicate at least at Easter,
it made no new rule; it merely enforced by universal statute
the least that was expected of anyone who called himself a
Catholic.
The precept of annual confession is intrinsically connected
with that of Easter Communion both in the Church's legis-
lation and in its own nature. For, as the Catechism of the
Council of Trent teaches, 1 the power of order, although
primarily it refers to the consecration of the Eucharist, yet
also comprises all that is necessary to dispose the faithful to
receive the Eucharist worthily and profitably. It comprises,
then, the power to forgive sins, inasmuch as no one who is
conscious of mortal sin may receive Holy Communion without
previous confession and absolution. The Council of Trent 2
teaches that the words of St Paul, " Let a man prove himself,"
have always been understood in the Church of the necessity
of sacramental confession and absolution before Holy Com-
munion when there is consciousness of mortal sin. The law
of the Lateran concerning annual confession and Communion
is thus one law, confession being ordinarily a necessary pre-
paration for Holy Communion in those who rarely communi-
cate. That the Church always understood this is witnessed
to by Alcuin in the eighth century, 3 by St Leo in the fifth, 4
St Augustine in the fourth, 6 and St Cyprian in the third. 6 We
have the same conjunction of confession and Communion in
the sentence of the Didachd: " But on the Lord's day do ye
assemble and break bread, and give thanks, after confessing
your transgressions, in order that your sacrifice may be pure." 7
In all probability the confession here spoken of should be
interpreted as meaning sacramental confession to a priest.
The Council of Trent, then, was justified in saying that before
receiving Holy Communion it had always been considered
1 Pt. ii, c. 7, q. 6. 2 Supra, p. 102.
3 De Psalmorum Usu, P.L., ci, 499.
4 Epist. 108, P.L., liv,. ion.
5 Serm. 278, P.L., xxxviii, 2273.
6 Epist. 10, P.L., iv, 254; Epist. ii, ib. 257; De Lapsis, xvi, ib. 479.
7 C. xiv.
324 A SHORT HISTORY OF MORAL THEOLOGY
a duty to go to confession when there was consciousness
of mortal sin. In the fifth or sixth century a practice sprang
up which was the forerunner of the Lateran law of annual
confession. At the beginning of Lent public penance was
imposed on those who had been guilty of great and notorious
crimes. In some of the Penitential Books 1 the priest is
bidden to invite all who are conscious of mortal sin, and even
all who by any sin whatever have soiled their baptismal robe,
to make humble confession to their own priest on Ash Wednes-
day, and accept the penance enjoined according to the canons.
If there was any special reason for granting absolution at once,
that was done, otherwise absolution was deferred till Maundy
Thursday, when, the penance having been performed, the
penitent was absolved and admitted to Communion. This
was a mitigation of the earlier discipline of some Churches,
especially in the East, according to which public penance
sometimes lasted for years. 2 The name of Shrove Tuesday
and the custom of receiving ashes on the head on Ash Wednes-
day, still remind us of the old discipline of the Catholic Church.
It was natural, then, that when the Church made it obligatory
on all to receive Holy Communion at least every Easter, it
should also impose the obligation of annual confession. The
law indeed does not indicate Easter as necessarily the time
for the annual confession, but in practice it follows the time
for the annual Communion. Originally the annual con-
fession had by law to be made to the parish priest or to the
bishop of the penitent, but for centuries it has been lawful to
make it to any priest who has faculties for hearing confessions
in the place.
The faithful are bound by natural and divine law according
to the teaching of St Paul 3 to contribute to the support of their
pastors. For some centuries the revenues of the Church
derived from the offerings of the faithful and from other
sources constituted one fund, and this was administered by
the bishop. The support of the poor, the maintenance of
public worship, as well as the support of the clergy and other
needs, were all supplied from the common fund. According
to a decretal of Pope Gelasius (501) the Church revenues
were to be divided into four portions, one for the bishop,
another for the clergy, a third for the relief of the poor and
strangers, the fourth for the Church fabrics. In his celebrated
1 Schmitz, Bussbiicher, i, 775.
2 Duchesne, Christian Worship, p. 435.
3 i Cor. ix; Gal. vi 6.
A SHORT HISTORY OF MORAL THEOLOGY 325
answers to St Augustine, Gregory the Great tells the first
Archbishop of Canterbury that as he was a monk he did not
need a separate portion, and should be content to share in
common with his clergy. For several centuries no positive law
of the Church was needed to compel the faithful to do their
duty in this matter. The Fathers who occasionally urge the
obligation are content to appeal in support of it to the teaching
of St Paul or to the law of tithes under the Mosaic dispensation.
The Penitential attributed to St Theodore enjoins that the
custom of the province should be observed relative to con-
tributions to the Church, but that the poor were not to be
subjected to violence for the sake of tithes or other matters.
Positive ecclesiastical laws, however, began to appear both on
the Continent and in England in the eighth century. Thus
the seventeenth article of the legatine council held in England
by the authority of Pope Adrian I (785-787) contained the
following provision : " Wherefore also we solemnly lay upon
you this precept, that all be careful to give tithes of all that
they possess, because that is the special part of the Lord God ;
and let a man live on the nine parts, and give alms." At first
there was some variety in the appropriation of tithes, but when
the parochial system was introduced, between the tenth and
thirteenth century, the appropriation of tithes to the parish
priest became the settled rule. In modern times, at least in
English-speaking countries, the offerings of the faithful con-
stitute almost the only source of Church revenues as they did
in the early ages of Christianity, and their apportionment and
distribution are regulated by special laws. 1
As marriage was raised to the dignity of a sacrament by
Christ our Lord, and the Church alone has jurisdiction over
the administration of the sacraments, it follows that Christian
marriage is subject exclusively to the laws of God and of the
Church. There are several passages in the Epistles of St Paul 2
which show that the Church was conscious of her authority
in this matter, and that she used it from the earliest times.
St Ignatius in his letter to St Polycarp says that it is proper
that Christians should contract marriage according to the
judgement of the bishop, and Tertullian asserts that marriages
which were contracted without being previously notified to
the Church were in danger of being considered as no
better than adulteries and fornications. The history of the
many laws relating to Christian marriage is too large a subject
1 Constitution of Leo XIII, Romanes Pontiftces.
z i Cor. v, vii; z Cor. vi 14.
326 A SHORT HISTORY OF MORAL THEOLOGY
to be treated here even in outline. We will confine ourselves
to the impediments of consanguinity and close time.
The natural and divine law prohibits marriage in the first
degree of the direct line, and most probably in all degrees
indefinitely in the same line. In the collateral line, also, it
most probably forbids marriage at least in the first degree.
With respect to further degrees in the collateral line the Church
adopted the Mosaic legislation, and there are no traces of her
having exercised further the independent power which she
certainly possessed to enlarge or restrict the limits of kindred
before the fourth or fifth century. The Council of Epaon
(517) forbade marriages between second cousins, Gregory II
(721) prohibited marriage with relations in general, and from
the eighth to the eleventh century the prohibition was extended
to the seventh degree according to the canonical mode of
reckoning. The Fourth Council of Lateran (1215) restricted
the prohibition to the fourth degree, and the new Code
restricts it to the third.
As the solemn celebration of marriage is not in keeping with
penitential exercises, a council of Laodicea in the fourth
century forbade the celebration of marriage during Lent.
Subsequently the solemnization of marriage was forbidden
from Septuagesima Sunday till the octave of Easter, during
three weeks before the feast of St John Baptist, and from
Advent till after the Epiphany. There was a dispute as to
the three weeks before the feast of St John Baptist, and
Clement III, at the end of the twelfth century, decided that
the period was to be interpreted as extending from the Rogation
Days till the Sunday after Pentecost. The Council of Trent 1
decreed that close time for the solemnization of marriage was
to extend from Advent till after the Epiphany, and from Ash
Wednesday till after Low Sunday, which the Code has altered
as above (p. 212).
We must not leave this first period in the history of moral
theology without saying something about the penitential
books which began to appear in the sixth century and sub-
sequently became very numerous. They were intended
as a help to bishops and priests in their duty of imposing
canonical penances on sinners and reconciling them to God
and the Church. At first they were little more than lists of
sins with the appropriate canonical penance annexed to each
sin. The quality and length of penance assigned were derived
from the councils or from the canonical letters of St Basil,
1 Sess. xxiv, c. 10.
A SHORT HISTORY OF MORAL THEOLOGY 327
St Peter of Alexandria, St Athanasius, and other Fathers of
the Church. Afterward chapters were added containing short
moral rules on a great variety of subjects, the method of receiv-
ing and dealing with penitents, and the method of reconciling
them. They are of importance in the history of moral theology
as furnishing a standard by which the malice of various trans-
gressions was measured according to a great variety of circum-
stances. They fell into disuse with the gradual cessation of public
penance in the Church.
SECTION II
The Scholastic Period
It is not possible to indicate any particular year when the
scholastic period began. We may say that the patristic period
closed with the death of St Bernard, the last of the Fathers,
in the year 1153. Many of the characteristics of scholasticism,
however, and especially the application of philosophy to the
exposition and defence of theology, are conspicuous in the
works of many of the Fathers. In their work, too, of systema-
tizing theology the schoolmen had many predecessors among
the Fathers, and especially St John Damascene and St Isidore
of Seville. Nor is the common assertion that the Fathers
favoured Platonism while the scholastics adopted Aristo-
telianism quite warranted by facts. Clement of Alexandria
especially, and other Fathers as well, were eclectic as philo-
sophers, and borrowed what they thought was true from any
and every source. Still we may for practical purposes say
that scholasticism began in the twelfth century. Then it was
that the growth and development of theology began afresh.
It had been interrupted for seven hundred years by the neces-
sity of civilizing the barbarians who had broken up the Roman
Empire and settled in its territories. From this time moral
theology has come down to us in two distinct channels. Peter
Lombard may be looked upon as the fountain-head of the first
stream, and St Raymund of Pennafort of the second.
Peter Lombard wrote his work on the Sentences between the
years 1145 and 1150. He therein treats of the whole of theo-
logy* both dogmatic and moral. He wished to counteract
the rationalizing tendencies which as a pupil of Abelard he
had noticed in the schools of Paris. To the various and
erroneous views which the spirit of rationalism had intro-
duced, Peter opposed the traditional doctrine handed down
in the writings of the Fathers. After much consideration, as
3a8 A SHORT HISTORY OF MORAL THEOLOGY
he tells us, he found a guiding principle for the distribution
and ordering of the subject-matter of theology in a sentence
of St Augustine. Christian revelation, contained in the Holy
Scriptures, has for its subject-matter either things or signs.
Under signs come the sacraments, and things are either such
as we have fruition of, or such as we use, or such as we both
use and enjoy by fruition. Under the first head comes God,
one in nature and three in person. Under the second come
all created things, the angels, man, his end, fall, and redeeming
grace. Under the third, the incarnation, faith, hope, charity,
the seven gifts of the Holy Spirit, the Ten Commandments.
The whole matter of theology is thus systematically arranged
in four Books. Each Book is divided into Distinctions, devoted
to some special point on which the traditional doctrine is laid
down by quoting appropriate extracts (Sententiae) from the
works of the Fathers. Apparent or real differences of opinion
are noted and as far as possible reconciled with each other.
Although Hugo of St Victor, Robert Pullen, and other theo-
logians had previously composed similar books of Sentences,
yet the work of Peter Lombard soon eclipsed them all in the
welcome that it received. It remained the recognized text-
book of theology until the end of the sixteenth century, when
its place was taken by the Summa of St Thomas. Nearly all
the great scholastics wrote Commentaries on the Sentences
of Peter Lombard, developing, illustrating, defending, and
sometimes correcting the doctrine which they found there,
especially from the speculative point of view. In these Com-
mentaries and in the Summas of scholastic theology we have
a most abundant and valuable source of the speculative side of
Christian ethics.
To meet the more practical and concrete needs of the con-
fessor, St Raymund of Pennafort composed his Summa de
Pcenitentia et Matrimonio about the year 1235. He, also,
merely collected and systematized the abundant material
which had been left by his predecessors. He had no more
intention of introducing changes into the traditional doctrines
of Christianity than had Peter Lombard. But as his aim was
not speculative but practical, he drew his material especially
from Gratian's Decretum, from the decisions of Popes and
the councils of the Church, as well as from the Fathers. The
work De Pcenitentia is divided into three Books. In the first
Book sins against God are treated of, in the second sins against
one's neighbour, and in the third irregularities, dispensations,
purgations, sentences, penances, and remissions. Each Book
. A SHORT HISTORY OF MORAL THEOLOGY 329
is divided into Titles, which contain an orderly and logical
exposition of some particular subject. Thus, in the first title
on Simony, the sin is defined, the origin of the name is ex-
plained, the different kinds of simony are indicated, with the
penalties incurred and the dispensations which may be obtained.
Then follows a discussion of doubtful questions and cases.
Finally some rules of law on the matter are laid down and
explained.
The work of St Raymund was the first of those innumerable
handbooks written for the training and use of the confessor
especially from the practical and casuistical point of view.
Although in the treatment of the different titles the work of
St Raymund leaves little to be desired, yet it lacks something
in orderly arrangement and in completeness. These defects
were soon made good by others. A Friar Minor, of Asti, in
the north of Italy, composed the Summa Astensis in the year
1317. In the Roman edition of 1728 it fills two volumes
folio, and in its aim, in the matter which it contains, and in
the method of treatment, it differs little from the handbooks
of moral theology which are published at the present day.
The matter is divided into eight Books. The first Book treats
of divine and human law and contains the doctrine of the
Ten Commandments. The second treats of virtues and vices,
beginning with several titles devoted to human acts, voluntary
and involuntary actions, to expounding in what the goodness
or malice of actions consists, and merit. The cardinal and
theological virtues and the sins opposed to them are explained
in detail. The third Book contains the doctrine on contracts
and last wills; the fourth that on the sacraments in general,
and on Baptism, Confirmation, and the holy Eucharist. The
treatise on Penance and Extreme Unction in the fifth Book
contains also the doctrine on prayer, fasting, almsdeeds, resti-
tution, and indulgences. That on Orders in the sixth Book
treats also of churches and sacred vestments, ecclesiastical
burial, parishes, prebends, tithes, of the various grades of the
clergy and of religious and their obligations. Censures and
ecclesiastical penalties occupy the seventh, and Matrimony the
eighth Book.
The dogmatic treatment of moral theology reached its high-
water mark in the second part of the Summa of St Thomas
Aquinas. That marvellous production of genius has never
been surpassed or even equalled as an exposition of the general
principles of Christian ethics. Neither has the casuistic treat-
ment of morals in general made much progress since the
330 A SHORT HISTORY OF MORAL THEOLOGY
thirteenth century. Of course, there have been numerous
changes in discipline during the last six centuries, and these
require to be noted in new moral treatises as they occur.
There have also been some changes in theological opinion.
As an illustration of such a change we may instance that con-
cerning the use by superiors of knowledge gained from con-
fession. St Thomas and scholastic theologians commonly
held that a superior who knew from confession of a dangerous
occasion of sin to one of his subjects might use his authority
to remove his subject out of the danger, provided that thereby
he violated no principle of justice nor made known to others
the sin which had been confessed to him. This opinion is
now quite obsolete, and it has been virtually condemned by
the Holy See. 1 But in spite of some such changes in detail,
the general assertion remains true that moral theology to-day
is substantially what it was in the thirteenth or at the beginning
of the fourteenth century. There is, however, one important
exception to this general statement. That exception is due
to the express formulation at the end of the sixteenth century
| of the doctrine of probabilism.
/ We must, however, be on our guard against exaggerating
the importance of probabilism, and confounding it with moral
theology in general. After all, probabilism is only concerned
with the solution of doubtful questions. There is an immense
body of moral doctrine which is certain and where probabilism
or other similar theory of morals does not enter. There are
also, it must be confessed, many doubtful questions, especially
connected with the application of general rules to particular
cases, and it is in the solution of these doubtful and disputed
questions that probabilism is concerned. All Catholic divines
state or take for granted the doctrine that it is sinful to act with
a doubtful conscience, without making up one's mind that
the action which is contemplated is morally right. This is
the teaching of Holy Scripture : " All that is not of faith "
i.e., done with the conscientious conviction that it is right " is
sin," says St Paul. 2 But if this be so, what are we to do in
doubtful matters, where perhaps divines themselves disagree,
and some teach that an action is right, while others assert that
it is wrong ? In such cases we can only act, according to the
doctrine, of St Paul, if we are able to make up our mind that
the action is lawful and honest. How can this be done ?
Before the close of the sixteenth century, when Bartholomew
a Medina published his Exposition on St Thomas, there was
1 Supra, p. 232. z Rom. xiv 23.
A SHORT HISTORY OF MORAL THEOLOGY 331
no commonly recognized method for forming one's conscience
in doubtful matters. The Summa Astensis devotes the last title
of the second Book to the subject of " Perplexities of Con-
science." The author distinguishes perplexities of law from
perplexities of fact. The former, he says, occur when there
are two apparently contrary opinions about the lawfulness of
an action, the latter when a man believes that in avoiding one
sin he must perforce commit another. He has much to say
about perplexities of fact, but about perplexities of law, which
alone concern us here, he simply observes that they can be
removed in whatever state a man may be, but he does not tell
us how this may be done. He refers, indeed, to Alexander of
Hales, who wrote before St Raymund of Pennafort, and who
in the article of his Summa devoted to the subject of " Con-
science " tells us that a perplexity of law is to be removed by
the unction of the Holy Spirit, who teaches concerning all
things. 1 St Raymund gives a more satisfactory rule and says
shortly that a perplexity arising from a difference among
Doctors is to be solved by reducing the contrary opinions to
agreement, for there is no real but only apparent contradiction
in law. This puts us on the right track; it tells us that for
the solution of doubtful cases the theologians of the time
followed the ordinary rules of legal interpretation, the chief
among which was the rule of law which guided Gratian in the
composition of the Decretum and Peter Lombard in his work
on the Sentences, and which the Roman lawyers had expressed
by saying that it is meet to make one law agree with another
Conveniens est jura juribus concorctare. 2
Although this was the chief rule of law to be followed when
authorities differed, it was by no means the only one. Later
authors, such as Angelus de Clavasio (1480), Sylvester Prierias
(1516), and Navarrus (1560), give lists of the different rules
of law to be applied to the solution of doubtful cases in different
circumstances. We may take them from Navarrus, as they
are substantially the same in all the authorities of the time.
When there are different opinions among Doctors, says Navarrus
in effect, that opinion should be preferred which is confirmed
by custom, or grounded on a text of law, or which rests on an
invincible argument. If none of these rules serves, then the
common opinion should be followed, and that may be called
a common opinion which six or seven approved authors adopt,
though there may be fifty others who blindly follow each other
1 Summa, ii, q. 120.
2 L. unica, C., de inofficiosis dotibus.
332 A SHORT HISTORY OF MORAL THEOLOGY
like sheep against it, for weight and not number is mainly to
be considered in such questions. If that rule does not suit
the case, then the opinion should be chosen which is backed
by more numerous authorities and reasons ; then that which is
more lenient, or which favours marriage, a last will and testa-
ment, liberty, a private individual against the State, the validity
of an act, or the defendant in an action at law. If in none of
these ways one opinion is better than the other, then that
should be adopted which the greater number of theologians
follow if the matter belong to theology, or canonists if it belong
to canon law, or civilians if it belong to civil law. To these
rules Navarrus adds the note that in the forum of conscience
it is sufficient to choose as true the opinion of a man of virtue
and learning. 1
Sylvester Prierias tells us that all were agreed that when
Doctors differed, a man might follow the opinion of one Doctor
even though he was drawn to follow him by affection without
subtle investigation into the grounds on which his opinion
rested.
While the Fathers of the Church, such as Gregory Nazianzen,
and the schoolmen with St Thomas solved particular cases of
doubt in favour of liberty by applying the rule of probabilism
that a doubtful law cannot impose a certain obligation, yet
up to the time of Medina it was commonly held that in doubtful
cases a man was bound to follow the opinion which seemed
to him the better grounded or the more probable. The
Dominican Bartholomew a Medina (1577) was the first to show
that if it were a question of obligation, not of mere counsel,
this was illogical. The more probable opinion may be the
safer and better opinion, but we are not usually bound to
take the safer or better way; we are at least allowed to take
that which is good and safe. And a probable opinion is safe,
for good and wise men see no sin nor danger of sin in it, else
it would not be probable. So that a probable opinion may be
followed even by one who knows and holds that the contrary
opinion is more probable.
By these and other arguments Medina put probabilism on
a firm basis, and the doctrine was at once received on all hands.
It was the logical deduction from principles which all admitted,
and so theologians of all schools accepted it at once, though
some of them do not seem at first to have realized its far-
reaching consequences. Dr. Hall, who published his work
De Quinquepartita Conscientia in 1598, accepted and defended
1 Manuale Gonfessariorum, c. 37, n. 288.
. A SHORT HISTORY OF MORAL THEOLOGY 333
the new principle, but he placed it side by side with the older
methods of forming one's conscience which he copied from
Navarrus. Of these methods he remarks that they are so
many different ways of forming a probable opinion. He did
not fully realize, as it seems, that the new principle was uni-
versal, and rendered the use of the old rules to a great extent
unnecessary in the forum of conscience. The same may be
said of Azor, who published the first volume of his Institutiones
Morales in the year 1600. Other theologians, however, such
as Vasquez, Suarez, Salon, Laymann, soon realized the signi-
ficance of the new method, and proceeded to explain, develop,
and on certain points to limit its application. It was seen that
it can only be applied where the sole question is whether an
act is sinful or not; it may not be applied where an end must
be attained and may not be placed in jeopardy, or where the
validity of an act is in question, or where there is question of the
certain right of another.
SECTION III
The Modern Period
Almost the whole modern period from the opening of the
seventeenth century is occupied with the controversy about
the right system of moral theology. Modern research has
confirmed the historical accuracy of the account of the origin
of this dispute which Fr. Antony Terill or Bonville prefixed
to his work Regula Morum, published in 1676. Fr. Terill,
S.J., was a learned and acute theologian who taught theology
at the English College of the Society at Liege, now represented
by Stonyhurst and St Beuno's. Besides his Regula Morum
he published another work, De Conscientia Probabili, in 1668.
He was a good and conscientious man, and had ample means
of knowing the facts to which he testifies. According to
Fr. Terill, until about the year 1638 practically all Catholic
theologians of all schools accepted and taught probabilism.
The only exception was the not very notable Italian Jesuit
Comitolus, who published his Responsa Moralia in 1608.
Comitolus taught probabiliorism and attributed the doctrine
of probabilism quite falsely to what he calls the shameful lapse
of Armilla. The opinion of Comitolus passed almost un-
heeded, and there was peace and comparative harmony in the
schools of morals. This peace began to be broken when the
friends of Jansen were planning the publication of his famous
book Augustinus. The first of the five propositions which
334 A SHORT HISTORY OF MORAL THEOLOGY
were extracted from that book and condemned by Innocent X
in 1653 asserted that there were some laws of God which could
not be observed even by the just, do what they would, and
that God did not give grace to enable them to observe these
laws. This heretical and blasphemous proposition, which
made God a tyrant who gave orders which he knew could not
be obeyed, was altogether out of harmony with the prevailing
system of moral theology, and its Jansenist supporters began
to attack probabilism in order to make an opening for their
own rigoristic doctrine. According to Caramuel, who was
at Louvain at the time and who wrote a book against them in
1639, they began to teach covertly that the use of probabilism
was something new; that he who leaves the safe way and follows
probabilism cannot but be condemned by God; that opinions
which are styled probable among us are not probable with
God. The war between probabilism and antiprobabilism had
broken out, a war conducted with the greatest heat and passion
for two hundred years, and not even yet quite ended. The
Louvain Doctors, after the condemnation of Augustinus by
the Holy See, retaliated by issuing their propositions against
probabilism in 1655. The strategy was the same as led
Dollinger and Reusch to publish their work on Momlstreitig-
keiten, after the definition of Papal Infallibility. The war,
however, was soon carried into France, where Jansenism had
won the support of a few proud spirits of the highest intellectual
gifts. Among these Pascal was pre-eminent, and he struck
the hardest blow which probabilism has ever sustained by
publishing his Lettres Provinciates in 1656. The book is
unfair and misrepresents the doctrines which it attacks, but
its wit and style gave it at once a place in the classical literature
of the world. It was condemned by Alexander VII at R.ome
in 1657, but by non-Catholics it is still regarded as the last
/ word on the subject of Catholic, and especially Jesuit, moral
[ theology.
Although the rise of Jansenism was the occasion of the
outbreak of war, there were other causes also which contributed
to the heat of the combat. Fr. Terill laments the disastrous
laxity of opinion on moral questions which was conspicuous
in many of the probabilist authors of the day. Many of these
wrote books, not to expound the truth, but to attract attention
to themselves and acquire notoriety. The means they em-
ployed for this purpose was the ventilation of new opinions
in morals. By making use of the weak argument from similar
cases they broached hitherto unheard-of doctrines which were
. A SHORT HISTORY OF MORAL THEOLOGY 335
industriously collected by the casuists. The fact that somebody
or other had said in his book that an opinion was probable and
that it had not been condemned by the Holy See was held
sufficient to merit for it a place among probable opinions in
moral theology. Fr. Terill, himself a strenuous defender of
probabilism, raised his voice against the inrush of laxity. He
did much by his writings to improve the theory by stating and
explaining it more accurately than had been done hitherto.
He insisted that in order to be accepted as a rule of conduct
it was not sufficient that an opinion should have some slight
degree of probability, or should only be probably probable;
it should be well grounded, seriously and solidly probable in
the judgement of experts, of men of virtue and learning. The
common method of proving probabilism by saying that one
who acts on a probable opinion acts prudently was objection-
able on the theoretical side, and Terill improved it by making
use of reflex principles, such as, "'A doubtful law is not
promulgated and cannot bind." This eminent English Jesuit
thus tried to stem the tide of laxity in an age of immorality
by stating the theory of probabilism more accurately and
limiting its use to its proper sphere. Other theologians with
the same laudable end in view threw probabilism overboard
altogether. This was especially the case with the theologians
of the great Order of St Dominic. A member of this Order
had first formulated probabilism, as we have seen, and, as
Salon testifies, other Dominicans were conspicuous as being
the first to accept and teach it. The most famous Dominican
theologians of the time, Ledesma, Banez, Alvarez, Ildephonsus,
and others were all probabilists. No anti-probabilist Domini-
can was heard of till the year 1656. In that year a general
Chapter of the Order was held at Rome, and all the members
were urged to adopt the stricter opinion in morals. From
that time onward the chief Dominican theologians have almost
without exception been probabiliorists. Among others are
the well-known names of Mercorus, Gonet, Contenson, Natalis
Alexander, Concina, Billuart, and Patuzzi, the adversary of
St Alphonsus Liguori.
From the strife of parties different moral systems began
to emerge. Jansenist rigorism, which required direct moral
certainty against the law to justify a departure from its ob-
servance, and which was not satisfied even with a most probable
opinion in favour of the lawfulness of an action, was con-
demned by Alexander VIII in 1690. Laxism, which was
satisfied with even a slightly probable opinion as a rule of
336 A SHORT HISTORY OF MORAL THEOLOGY
conduct, had been condemned by Innocent XI in 1679.
Probabiliorism and probabilism together held possession of
the field. At the beginning of the eighteenth century a few
theologians such as Amort, Rassler, and Mayr, defended
equiprobabilism. This system required an opinion in favour
of liberty to be equally probable with that in favour of the
law before allowing it to be used as a rule of morals. It would
not allow anyone to follow an opinion in favour of liberty
which was distinctly less probable than that which favoured
the law.
These three systems still have their defenders, and the last
has acquired strength from the adhesion to it of St Alphonsus
in the later portion of his life. St Alphonsus Liguori is recog-
nized as the Doctor of moral theology as St Thomas is of
dogmatic. By his writings he drove out of the Church the
last remnants of rigorism, and firmly established that common
doctrine in moral theology which it has been the aim of the
author to expound in these volumes. In spite, however, of
general agreement, there are some points of detail which are
still matter of controversy among moral theologians.
St Alphonsus was ordained priest in 1726 when he was
thirty years of age. He had been taught the probabiliorist
system of morals, but in the course of fifteen years of study
and experience in the confessional he came to the conclusion
that the system was false and harmful to souls. He then
adopted probabilism, and mainly using recognized probabilist
authorities, especially of the Society of Jesus, whom he acknow-
ledged to be his masters in this branch of learning, he composed
his chief work, the Theologia Moralis. The first edition
appeared in 1748, and a second and much enlarged edition
was issued in 1753. In 1755 St Alphonsus published an
elaborate dissertation on probabilism in which he proved the
doctrine and refuted the objections commonly brought against
it. He became Bishop of St Agatha of the Goths in 1762,
and published another dissertation in which he appeared to
adopt a new system of moral theology. While admitting that
it is lawful to follow a solidly probable opinion, he denied that
when in favour of the law there is an opinion which is certainly
and notably more probable than its opposite, this latter can be
really and solidly probable. The question is one of fact. If
this proposition be considered from the practical and concrete
point of view, its practical truth may be admitted, and St
Alphonsus probably understood it in this sense. Furthermore,
it may be admitted that the doctrine has its value in deciding
. A SHORT HISTORY OF MORAL THEOLOGY 337
when an opinion is solidly probable or not, and this was what
St Alphonsus intended. He wished to exclude laxism from
his system, and he invented this formula for the purpose.
Moderate probabilists secure the same end by stressing solidly
when they require a solidly probable opinion for a lawful rule
of action. Considered theoretically and logically, the formula
of St Alphonsus is open to attack, as it is not true that a greater
probability, even if notable and certain, does necessarily
deprive the opposite opinion of all solid probability. On this
point there is still some difference of opinion between simple
probabilists and equiprobabilists, but the dispute has little
to do with practical morals. The dissertation of St Alphonsus
was not inserted in the Moral Theology of the saint till it
reached its sixth edition, and his change of formula made little
change in the doctrine of his work. It remained substantially
what it always had been a great work on moral theology
written by a moderate probabilist.
Moral theology is still what St Alphonsus left it. There
is general agreement in the schools, a common doctrine which
all accept; it only remains to apply this to the social and
political conditions which we see growing up around us.
In this modern period of moral theology the sufficiency of
attrition without any strictly so-called initial charity on the
part of the penitent as a proximate disposition for the remission
of sin in the sacrament of Penance may be considered as
established. The changed conditions in our modern capitalist
society have had their effect on moral questions, for morality
must always take account of altered circumstances. Perhaps
the chief result in this direction is that a practical solution has
been attained of the long controversy about the lawfulness of
taking interest for a loan of money. The lawfulness of the
practice is now admitted; the only moral question is con-
cerning the amount which may be exacted. The doctrine of
the just price is applicable here; money, like other commodities,
has in our modern capitalist society its just price.
The new Code of Canon Law came into force on Whit
Sunday, May 19, 1918, and made many and important changes
in the discipline of the Church, and thus indirectly in many
ways affected moral theology.
II. 22
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JOHN CHRYSOSTOM (S), Migne, P. G., 47-64.
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INDEX
ABDUCTION, impediment of mar-
riage, ii, 231
Abortion, i, 201 ; penalty, ii, 280
Absolution, of sin, ii, 147; of
reserved cases, 159; in urgent
cases, ib.; of censures, 257
Abstinence, i, 360; who bound
to, ib. ; dispensation from, 361
Acceptation or respect of persons,
i, 250
Accession, i, 244
Act, human, i, i ; elicited, 3 ;
commanded, ib. ; external, ib.,
20; ii, 140
Acta Apostolicce Sedis, i, 48
Actions, good, i, i, 26; bad, ib. ;
indifferent, i, 20, 52; valid and
invalid, i ; voluntary, 5 ; meri-
torious, 26
A cunctis (prayer), i, 358
Administrator of will, i, 320
Adoption, impediment of mar-
riage, ii, 221 ; in English law,
ib.
Adult and Baptism, ii, 79
Adultery, sin, i, 212; impediment
of marriage, ii, 226
Advocate, ii, 5; and client, ib. ;
and matrimonial causes in civil
court, ib. fees of, 6 ; and poor,
ib.
Affinity, ii, 220; multiplied, ib.
Age and marriage, ii, 216; in
English law, ib.
Agency, i, 344; duties in, ib.;
liability in, 345; determined,
346 ; and clerics, ii, 22
Agents provocateurs, i, 131
Alienation of Church property, i,
235; ii, 281
Alluvion, i, 245
Almsgiving, i, 123 ; how much to
be given, 124; gravity of obli-
gation, 125
Altar, for Mass, ii, 119; portable
ib. ; when desecrated, 120
Ahum dominium of Church pro-
perty, i, 235
Ambition, i, 98
Amendment, purpose of, ii, 136;
qualities of, ib.
Anger, i, 100
Animals, property in, i, 241
Antonelli, i, 202
Apostasy, i, 112; penalty, ii, 270;
from religion, 280
Approbation for confessors, ii,
153, 154
Arbitrators, ii, 4; and civil law,
cf. Can. 1930
Astrology, see Divination
Attention, in Mass, i, 172; in
divine Office, ii, 20 ; in minister
of sacraments, 61
Attrition, i, 16; ii, 132
Auction, i, 336
Augury, see Divination
Austin and legal obligation, i,
80
Avarice, see Covetousness
Backbiting, i, 284
Bailment, i, 341
Bankrupt and debts, i, 277; and
discharge, 282
Banns of marriage, ii, 197; obliga-
tion imposed by, 198; dispen-
sation from, ib.; impediment
discovered by, ib.; and mixed
marriage, 199
Baptism, ii, 75; effects of, ib.;
necessity of, ib.; of desire and
of blood, 76 ; matter and form
of, 77; minister of, 78; cere-
monies in, ib. ; place of, 79 ;
and adults, ib. ; sponsors in, 81 ;
subject of, 83 ; of foetus, 84; of
convert ib.
343
344
INDEX
Benefice, fruits of, i, 236; what,
ii, 25
Bequest to pious causes, i, 317
Bestialitas, i, 218
Bet, i, 354
Betrothal, ii, 189; form of, ib.;
conditional, 191 ; effects of, 192 ;
consent of parents to, ib. ; dis-
solved, 194 ; no action for breach
of, in ecclesiastical court, 196
Bigamy and irregularity, ii, 290
Bishops, legislators, i, 51; and
papal law, 58 ; can dispense, 71,
156; ii, 238; special duties of,
ii, 27
Blackstone and legal obligation, i,
80
Blasphemy, i, 155
Boasting, i, 99
Bona vacantia, i, 243
Books, forbidden, i, 133, ii, 271
Booty in war, i, 208
Breviary, ii, 17; obligation of,
ib.; Roman, 18; and calendar,
ib. ; order in, ib. ; vocal prayer,
19; intention and attention in,
20; what excuses from, 21
Bulla crudata, i, 72
Burial, ecclesiastical, ii, 266; who
refused, ib.
Cabalistic signs, i, 144
Caesarian section, i, 202; ii, 85
Calumny, i, 286
Candles for Mass, ii, 121
Canons, duties of, ii, 29; in
England, ib.
Gapellman, i, 201
Capital and money, i, 323
Capital punishment, i, 196;
belongs to State, 197
Carriers, i, 342
Gassel, Dr. G., i, 322, 325
Catholics, duties of, to eccle-
siastical superiors, i, 192
Celibacy of clergy, ii, 13
Censures, ii, 253; conditions for
incurring, 254; who inflicts,
255 ; when multiplied, 256 ; and
ignorance, ib.; absolution of,
257; kinds of, 259; special, 268
Ceremonies in administering
sacraments, ii, 68; in Baptism,
78
Chalice for Mass, ii, 121
Character in sacraments, ii, 55 ;
in Baptism, 75; in Confirma-
tion, 87; in Orders, 183
Charity, i, 115; when of obliga-
tion, 116; well ordered, 117;
order of, 119; due to enemies,
1 20
Charms, i, 144
Chastity, ii, 49 ; vow of, ib.
Children, duties of, i, 176; when
bound to support parents,
177; when emancipated, ib.;
brought up as Protestants, ii,
278
Chiromancy, see Divination
Choice, 2
Chrism, in Baptism, ii, 78; in
Confirmation, 87
Church (corporation), right to
own property, i, 234
Church, (building), pollution of,
ii, 119; reconciliation of, 120;
desecration of, ib.
Circumstances, source of morality ,
i, 25; aggravating, 26; in con-
fession, ii, 139
Clandestinity and marriage, ii,
232; present law of, 233; who
subject to law of, 234
Clerics, property of, i, 236 ;
special duties of, ii, 1 1 ; sanc-
tity of, ib.; celibacy of, 13;
dress of, 15; what forbidden
to, 22; women servants of, ib.;
and theatres, 23; and trading,
ib. ; incardination of, 34; and
secret sin, 35; conditions for
reception into seminary, 36;
presuming to marry, 277
Codicil, i, 316
Collectivism, i, 229
Gommunicatio in sacris, i, 109
Communion, Easter, i, 365; re-
fused to whom, ii, 68, 102;
before marriage, 69 ; age for,
101 ; frequent, ib.; fasting, 103
Gomplicis absolutio, ii, 163; quis
complex, 164; in articulo
mortis, ib.
Conception, preventing, i, 201
Concupiscence, i, 13; antecedent
and consequent, 14; neutrality
under assaults of, 15
INDEX
345
Confession, annual, i, 363;
before Communion, ii, 102; in
Penance, 138; integrity of, 139;
general, 142; seal of, 174
Confessor, in state of sin, ii, 65 ;
of religious, 153; of nuns,
154; as spiritual father, 165;
physician, 166 ; counsellor,
168; judge, 170; mistakes of,
172
Confirmation, matter and form
of, ii, 87; minister of, 89;
subject of, 90; sponsor in, ib. ;
may not be neglected, ib.
Congregations, Roman, power of,
i, 51 ; of Sacred Rites, ib.
Consanguinity, ii, 218; in English
law, 219; multiplied, ib.
Conscience, i, 29; divisions, ib.;
binds in name of God, 32;
doubtful, 34; probable, 37;
and civil law, 79
Consent, i, 3; to injustice, 270;
in contracts, 300; in marriage,
ii, 201
Conspiracy in injustice, i, 271
Contract, and law of place, i, 57;
nature of, 297; divisions, ib. ;
formal, 298 ; in canon and civil
law, 299; and consent, 300;
and mistake, 301; and mis-
representation, 302 ; and duress,
ib.; undue influence, ib.;
capacity of parties, 303 ;
matter of, 305 ; consideration
in, 308; discharge of, 309; of
marriage, ii, 200
Contrition, ii, 132; qualities of,
133
Contumacy and censures, ii, 254
Contumely, i, 101, 289
Convert, and Baptism, ii, 84;
and confession, 128
Convict and contracts, i, 304
Co-operation, in another's sin,
i, 132; in injustice, 269; by
counsel, ib. ; by command, 270;
by consent, ib. ; by provocation,
praise, or flattery, 271 ; as part-
ner, ib. ; by silence or defence,
272
Copyright, i, 227
" Corners," i, 339
Corporations, right to form, i,
231; to own property, ib.;
contracts of, 304
Corpus juris, i, 75
Covetousness, i, 99
Craniotomy, i, 202
Creditor, secured, i, 278; pre-
ferred, ib.
Cremation and will, i, 319; for-
bidden by Church, ib., ii, 267
Crime, impediment of marriage,
ii, 226; adultery, ib.; murder,
227 ; adultery and murder, 228 ;
and ignorance, ib.
Criminal assault, i, 213
Criminal, obligations of, ii, 7
Crystal-gazing, i, 143
Cunningham, Dr. W., i, 324
Curates, ii, 33 ; duties of, ib.
Cursing, i, 157
Custom, i, 67; qualities of, 68;
abrogation of, ib.
Damnification, i, 255, 262
Dancing, i, 134
Debt, barred by time, i, 79;
priority, 277 ; of deceased, 277 ;
in marriage, ii, 248
Decalogue, i, 135
Defects, in things sold, i, 328; in
betrothal, ii, 195
Defendant, ii, 7; when interro-
gated, ib.
Degradation, ii, 266
Denunciation, i, 127
Deposit, i, 341; and religious
poverty, ii, 48
Deposition, ii, 266
Desire, i, 94
Despair, i, 113
Detraction, i, 286 ; making known
secret sin of another not always
wrong, 287 ; listening to, 288
Difference of religion, ii, 223,
225 ; and baptized non-Catho-
lics, 226
Discharge of bankrupt, i, 282
Disparitas cultus, see Difference
of religion
Dispensation, i, 70; who can
dispense, ib. ; interpretation of,
72; ceases, ib.; from abstin-
ence, 361; from fasting, 362;
from banns, ii, 198; from im-
pediments of marriage, 238;
346
INDEX
canonical reasons for, 241 ff. ;
petition for, 243; in forma
commissoria, 244; in forma
gratiosa, 245; now executed,
ib.
Divine Office, see Breviary
Divine right, i, 59
Divining-rod, i, 143
Divorce, ii, 206 ; and civil courts,
208
Doctor, duties of, ii, 9; and safe
remedies, ib. ; and Baptism, 10
Domicile and quasi-domicile, i,
56
Doubt, i, 34; sin to act in, ib.;
how to act in, 35
Dower, of widow, i, 233; of
benefice, ii, 25
Dreams, i, 142
Drunkenness, i, 103; sins com-
mitted in, ib.
Duelling, i, 204; penalty of, ib.;
illegal, 205 ; censure on, ii, 277
Duress, i, 17; in contracts, 302
Earnest to bind contract, i,. 327
Education of child, i, 179; in
Catholic school, 180; ii, 278
Effect of sin and confession, ii,
140
Emancipation of minor, i, 178, 232
Embryotomy, i, 202
Employers' liability, i, 188
Enclosure, religious, ii, 50, 275
End, of man, i, i ; does not justify
bad means, 8, 24, 202; source
of morality, 22
Enemies, to be loved, i, 120;
reconciliation of, 121
Engagement, see Betrothal
Envy, i, 101
Epieikeia, i, 63
Equity, see Epieikeia
Error, distinguished from ignor-
ance, i, ii ; in contract, 301;
in marriage, ii, 228
Estate, i, 225
Eucharist, ii, 91 ; as sacrament,
effects of, 92 ; matter and form
of, 93 ; minister of, 96 ; reser-
vation of, 98; necessity of, 100;
dispositions for receiving, 102;
penalty for abusing, ii, 269.
See Mass
Euthanasia, i, 104
Evil effect when imputed, i, 6, 8;
gravity of malice, 9
Excommunicates tolerated or not,
, 259
Excommunication, ii, 259; of
those to be avoided or tolerated,
ib. ; effects of, 260; irregularity
from violating, 261; special,
269 ff.
Executor of will, i, 319; duties of,
ib.
Exemption of Regulars, i, 57, 82
Extreme Unction, ii, 179; effects
of, ib. ; matter and form of, 1 80 ;
minister of, 181 ; recipient of,
182; obligation to administer,
ib.
Faith, i, 105; necessity of, ib. ;
when of obligation, 107; ex-
ternal profession of, 108
Fare on railway, i, 252
Fasting, i, 361; who bound to,
362; who excused, ib.; before
Communion, ii, 103
Fault, theological and juridical,
i, 262 f.
Fear, i, 16; divisions, ib.; effect
of, on voluntary actions, ib.;
on positive law, 17; impedi-
ment of marriage, ii, 229 ; how
purged, 230
Finding, title to property, i, 243
Firm, i, 347 ; liability of, ib.
Fixtures, i, 350
Flattery, i, 271
Form, in sacraments, ii, 57;
change in, 58. See under name
of each sacrament
Fornication intrinsically wrong,
i, 212
Fraternal correction, i, 126; when
of obligation, ib. ; order in, 127 ;
and paternal correction, ib.;
of material sin, 128
Fraudulent preference in bank-
ruptcy, i, 278, 279
Freemasons excommunicated, ii,
274
Freewill, i, 2
Fruition, i, 3
Fruits, natural, industrial, civil,
i, 245 ; whose property, 256
INDEX
347
Fungible, i, 321 ; and money, 322
" Futures," i, 355
Gambling or gaming, i, 3535
forbidden to clerics, ib., ii, 22
Gift, i, 314; inter vivos and mortis
causa, ib.
Gluttony, i, 102
God's name, irreverent use of, i,
Grace, ex opere operate, ii, 54;
sacramental, 55
Guardians of minors, i, 183
Hatred of abomination and en-
mity, i, 121
Hereditary taint, i, 14
Heresy, i, in; a crime, 112;
penalty of, ii, 270
Heretics, subject to Church, i,
55 ; disputes with, 109 ; commu-
nication in rites of, ib. ; formal
and material, 112; reception
into Church, ib. ; excommu-
nicated, ii, 270
Hiring, i, 342
Holidays of obligation, i, 357
Homicide, when justifiable, i,
198 ; in defence of another, 199 ;
and irregularity, ii, 291
Honestas publica, see Public Pro-
priety
Hope, i, 113
Humility, i, 98
Hunting forbidden to clerics, ii,
22
Husband, bound to support wife,
i, 185; and step-children, 182,
185
Hypnotism, i, 145
Hypocrisy, i, 99
Idolatry, i, 141
Ignorance, i, ii; divisions, ib.;
when sinful, 13; excuses from
penalty, 77 ; and reserved cases,
ii, 158; and irregularity, 288
Illegitimates, and parents, i, 182;
and irregularity, ii, 289
Illusions, i, 14, n.
Imbecility, impediment of mar-
riage, ii, 229
Immunity, see Privilege
Impediment, of Orders, ii, 288;
of marriage, ii, 210; prohibi-
tory and diriment, ib. ; who
bound by, ib. ; prohibitory, 212;
dispensation from, 213, 238;
doubtful, 236; of minor de-
gree, 240. See under name of
each
Imperfection, i, 83
Impotence, ii, 215
Impurity, nature of, 209; malice
of, 210; indirectly voluntary,
ib. ; consummated sins of,
212 ; non-consummated sins
of, 219
Incest, i, 211; and confession, ii,
141
Indulgences, selling, ii, 274;
nature of, 293; divisions, 295;
conditions for gaining, 296;
applicable to holy souls, 299
Infidelity, i, in
Inheritance, i, 232
Injury, i, 251; divisions, ib.;
requires restitution, 255
Injustice, i, 250; modes of co-
operation in, 269
Innocent, killing of, i, 200
Insurance, i, 351 ; kinds of, ib.
Intention, i, 3; does not change
nature of external action, 24,
264; of God's glory, 27; in
saying Breviary, ii, 20; in
minister of sacraments, 62; in
reception of sacraments, 72 ; in
applying Mass, 108; for indul-
gences, 296
Interdict, ii, 264; violation of,
entails irregularity, 265 ; special,
285
Interest, i, 324
Interpretation of law, i, 62
Interstices in Orders, ii, 187
Intestacy, i, 319
Irregularity, ii, 287; divisions,
ib.; and ignorance, 288; from
defect, 289; from crime, 291;
removal of, 292
Jesuits deny that end justifies
means, i, 24, 202, 291
Jubilee, ii, 301
Judge, and bribe, i, 306; ii, 2;
duties of, ib. ; may he condemn
348
INDEX
the innocent, ib. ; and unjust
law, 3 ; civil and matrimonial
causes, 'ib.; 209
Jurisdiction, ii, 150; ordinary and
delegated, ib.', ceases, 151;
when Church supplies, 152,
257
Jury, ii, 4
Justice, i, 222; species of, 223,
250; sins against, 250
Kissing, i, 220; malice of, ib.
Landlord, i, 350
Law, i, 47; promulgation of, ib.',
differs from precept, 48; divi-
sions, 49 ; power of making, 50 ;
subject-matter of, 52; and
heroic acts, 53; and internal
acts, ib. ; subjects of, 55; im-
beciles and children, ib.',
drunken people, ib. ; heretics
and schismatics and law of
Church, ib.; domicile and
quasi-domicile in relation to,
56; strangers, ib.', acceptance
of, 58 ; obligation of, 59 ; moral,
penal, mixed, ib.; interpreta-
tion of, 62; excused from
observing, 65 ; cessation of, 67 ;
useless, 69; dispensation of,
70 ; natural, 73 ; positive divine,
74; ecclesiastical, 75 ; penal and
voiding, 76; civil, 78; formally
distinct, 89 f.
Lawyer, and fees, ii, 6; and
action for divorce, 209
Laxism, i, 38
Lease, i, 349
Legacy, i, 316; to pious causes,
Si?
Letters requiring secrecy, i, 296
Liberality, i, 99
Life must be preserved, i, 194
Ligamen, see Previous marriage
Limitation Acts, i, 79, 264
Loan for consumption and for
use, i, 321, 341
Lots, casting, i, 143
Lottery, i, 353
Lust, i, too
Lying, i, 290; malice of, 291 ; not
merely against justice, 292
Magic, i, 144
Malice, subjective and objective,
i, 88
Mandate, i, 341
Manslaughter, i, 200
Market overt, i, 257
Marriage, and contracts, i, 303;
contract of, ii, 200; a sacra-
ment, ib.; rights, 201; and
consent, ib.; under condition,
202; minister of, 204; matter
and form of, ib.; and State,
ib.; where contracted, 205;
unity and indissolubility of,
206 ; ratified, dissolved by Pope
and religious profession, ib.;_
and Pauline privilege, 207 ; and
parish registers, 234 ; dispensa-
tions for, 238 ff.; revalidation
of, 246 ; in radice, 247 ; debitum,
248 ; before non-Catholic minis-
ter, 278
Martyrdom called baptism of
blood, ii, 76
Mass, of precept, i, 169; where
to be heard, 171 ; conditions,
171 ; excuses from hearing, 172 ;
said in sin, ii, 65; nature of,
1 06; fruits of, 107; for whom
offered, 108; application of,
no ff. ; stipends for, 113; time
for, 117; place, 119; requisites,
121 ; rubrics of, 122
Masters and servants, i, 186
Matter of sacraments, ii, 57;
change in, ib. ; probable, 58.
See under name of each
Members of Parliament and
clerics, ii, 22
Menstrua, i, 217
Mental reservation, i, 292
Merit, i, 46
Military service and clerics, ii,
23
Minister of sacraments, ii, 61 ;
attention of, ib.; intention of,
62 ; ignorance of, 63 ; faith and
holiness of, 64; in sin, 65.
See under name of each
Minors, and property, i, 231;
contracts of, 303 ; marriage of,
ii, 199
Mistake in contract, i, 301 ; in
marriage, ii, 228
INDEX
349
Mixed marriage, ii, 224; promises
in, ib. ; and negligent Catholics,
ib.; ceremonies in, 225; banns
in, ib. ; not to be repeated before
non-Catholic minister, ib.
Money, a fungible, i, 322; as
capital, 323
Monopoly, i, 338
Morality, i, 19; norm of, ib.; in
will, 20; sources of, 21
Morose pleasure, i, 95; in past
sins, ib. ; in the unmarried, 96 ;
in evil as cause of good, ib.
Morphia, i, 104
Motus primo-primus, i, 3
Murder, i, 200
Mutilation, i, 195
Mutuum, i, 321
Natural acts, i, 4
Necromancy, see Divination
Negligence, i, 9 ; degrees of, 262
Neophyte and Orders, ii, 288
Notary public, ii, 6
Novel-reading, i, 220
Novitiate, who can enter, ii, 41
Nuns, confessor of, ii, 154. See
Religious
Nuptial blessing, ii, 205
Oath, i, 157; divisions, ib.; con-
ditions for, 158; interpretation
of, 159; under grave fear, 160;
ceases, ib.
Obedience, ii, 51 ; vow of, ib.
Object and morality of act, i, 22
Obligation of law, i, 59 ; kind of,
60; how satisfied, 61
Occasions of sin, i, 60, ii, 168;
what to be avoided, ib.
Occult compensation, i, 283
Occupation, title to property, i,
242
Offerings of faithful, i, 237; at
Easter and Christmas, 240
Oils, kinds of holy, ii, 78, 87
Omission, sin of, i, 9
Onanism, ii, 249
Opinion, i, 38 ; divisions, ib.
" Options," i, 355
Ordeal, i, 146
Orders, ii, 183; minister of, 185;
subject of, 1 86; interstices in,
187 ; and marriage, 222
Ovaries, removal of, and marriage,
ii, 215
Ownership, i, 225; absolute and
qualified, ib.; objects of, 226;
and vow of poverty, ii, 45
Parent, duty of, i, 179; authority
over child, 181; and child's
property, ib.; and illegitimate
child, 182; child's Catholic
education, ii, 278
Parish priests, not legislators, i,
51 ; can dispense, 71 ; who are,
ii, 30; duties of, 31; and
marriage, 233; marriage dis-
pensations, 239
Parochial system, ii, 30
Partner in injustice, i, 271
Partnership, i, 347; dissolved, 348
Passion and sin, i, 14
Pastors, support of, i, 366
Patriotism, i, 176, 193
Patron saint, i, 358
Pauline privilege, ii, 207
Pawnbrokers, i, 342
Peculium of religious, ii, 48
Penalty, when incurred, i, 77;
ecclesiastical, ii, 266
Penance, virtue of, ii, 125;
sacrament, 126; necessary, 127;
matter of, 128; and doubtful
sins, 130; unformed, 135 ; form
of, 147; minister of, 149
Peregrini, see Strangers
Perjury, i, 158
Perpetuities, rule against, i, 317
Picketing in strike, i, 275
Planchette, i, 143
Pleasure as motive not sinful, i, 25
Pledge, i, 342
Poaching, i, 244
Policy in insurance, i, 35 1
Pollutio, i, 215; in somno, 216;
apud mulieres, ib.; apud im-
puberes, 217; frequens ex
causa levi, ib.
Pollution of church, ii, 119
Poor, alms due to, i, 123 ; spiritual
ministrations not to be refused
to, 367
Pope, legislator, i, 50; dispensing
power of, 70 ; Constitutions of,
76; supreme administrator of
Church property, 235
350
INDEX
Porro, operation, i, 203
Possession, principle of, i, 35
Possessor, in good faith, i, 256;
in bad faith, 259; in doubtful
faith, 260
Poverty, religious, ii, 44; solemn
and simple vow of, 45; and
canon law, 46 ; sins against, 47
Prayer, divisions, i, 136; obliga-
tory, ib.; conditions for being
heard, ib.; to whom and for
whom made, 137; A cunctis,
358
Precept, i, 48 ; of Church, 357
Premium in insurance, i, 351
Prescription, i, 246; conditions
for, ib.', good faith in, 247; in
canon law, 248
Presumption (conjecture), i, 36;
(vice), 98, 114
Previous marriage, ii, 216 ; second
marriage in doubt, 217
Price, just, i, 329; in special
cases, 330; in monopolies, 339
Pride, i, 97
Priest without charge, ii, 34; and
Mass, 36
Principal and agent, i, 344
Principle of double effect, i, 7,
200
Privilege, i, 80; divisions, 81;
how interpreted, ib.; ceases,
ib.; of religious, 82; of forum,
ii, 272, 275; of canon, 273,
279.
Prize, in war, i, 208 ; got by unjust
means, 264
Probable opinion, i, 38; intrinsic
and extrinsic, ib., 41 ; and
sacraments, ii, 64
Probabilism, i, 38; and the
Church, 40; not the ideal of
Christian life, 41 ; limitation of,
42
Prodigality, i, 99
Profession of faith, i, 108; reli-
gious, ii, 43
Prohibition of marriage, ii, 212
Promise, i, 312; ceases to bind,
313
Property, private, i, 128; who
may own, 230; and societies,
231; and minors, ib. ; and
married women, 23 3 ; of Church,
234; of clerics, 236; title to,
242; in things found, ib.; and
wild animals, ib.
Prosecution, when to be under-
taken, ii, 7
Puberty and reserved cases, ii,
157
Public propriety, ii, 222
Pupil, duties of, i, 191
Pusillanimity, i, 98
Quasi-domicile, i, 56
Quasi-parish priest, ii, 30
Rape, i, 211
Raptus, see Abduction
Rash judgements, i, 284
Recidivists, ii, 166; how treated,
167
Referee, ii, 4
Reflex principles for forming
conscience, i, 35
Regulars, exemption of, i, 82.
See Religious
Relatives, duties of, i, 183
Relics, worshipped, i, 139; false,
ib. ; ii, 279
Religion, virtue of, i, 135; who
may enter, ii, 40; forcing to
enter, 281
Religious, contractual capacity of,
i> 33 j an d laws binding clerics,
ii, 16; state, 37; duties of, 38;
confessors of, 153; presuming
to marry, 277, 280
Religious prelates, legislators, i,
51 ; dispensing power of, 71
Remedies for sin, ii, 166
Reputation, right to, i, 226
Reserved cases, ii, 156; papal
cases, ib.; Bishops', 157; of
religious, ib.; and ignorance,
158; reservation ceases, ib.;
absolution of, 159 ; occult papal,
274; presuming to absolve
from papal, 275
Residence of Bishops, ii, 27; of
parish priests, 31
Restitution, i, 255; roots of, ib. ;
for damage done, 262; for
spiritual harm, 265 ; in another
kind, 266; in reputation, ib. ;
for wounding, 267 ; for fornica-
tion, ib.; for adultery, 268;
INDEX
made to whom, 273 ; how much,
274 ; manner of, 279 ; time and
place of, 280; excuses, 281;
obligation of confessor, ii, 172
Revenge, i, 100
" Rigging " market, i, 355
Right, i, 224; in re and ad rent,
ib.; inalienable, 251
Rigorism, i, 38
"Rings," i, 339
Rite in reception of sacraments, ii,
74
Robbery, i, 251
Rubrics of Mass, ii, 122
Rule of religious, ii, 38
Sabbath day, i, 169
Sacrament, ii, 53; number, 54;
formed and unformed, 55;
reviviscence of, ib.; of living
and dead, 56; matter and form,
57; under condition, 59;
minister of, 61; duty of ad-
ministering, 66; refused to
whom, 67; simulation of, 69;
recipient of, 71 ; dispositions
for, ib.
Sacramentals, ii, 54
Sacred, objects, i, 147; vessels to
be handled by clerics, 150
Sacrifice, ii, 106
Sacrilege, i, 147; personal, local,
148; real, 149, 214
Sadness at good, i, 96
Sale, of dangerous or immoral
object, i, 133; of another's
property, 257; of goods, 327;
defects in goods, 328; price,
329 ; when property passes, 330 ;
title, 331; execution of, 333;
of realty, 334; by auction, 336
Satisfaction, in Penance, ii, 144;
of obligation, 145; commuta-
tion of, 146
Scandal, i, 129; passive, to be
avoided, 131
Scapulars, i, 140
Schismatics, and sacraments, ii,
7> 73 5 excommunicated, 270
Schoolmasters, i, 191
Schools, non-Catholic, i, 180;
ii, 278
Scrupulous conscience, i, 43 ;
causes of, 44; remedies, ib. \
Seal of confession, ii, 174; penalty
for violating, ib., 270; who
bound by, 175 ; broken directly
or indirectly, 176
Secret commissions, i, 345
Secrets, i, 294; cease to bind, 295 ;
privileged, 296
Separation a toro et mensa, ii, 208 ;
and civil courts, ib.
Servants, duty of, i, 186; and
master's property, ib.; rights
of, 187; contract dissolved,
190
Servile work, i, 174; excuses for,
175
Simony, i, 151; divisions, 152;
penalties, 153; ii, 277
Simulation of sacraments, ii, 69
Sin, i, 83; divisions, ib.; condi-
tions for, 84; gravity of, 85;
venial disposes to mortal, 87;
species of, 89; number of, 91 ;
of thought, 94; capital or
deadly, 97; guilt and penalty,
, 293
Slander, i, 286
Slavery, i, 228; impediment of
marriage, ii, 229
Sloth, i, 102
Smegma, i, 215
Socialism, see Collectivism
Sodomia, i, 217
Soldiers and war, i, 207
Solicitation, malice of, i, 130
Sollicitatio ad turpia, ii, 161;
munus Ordinarii, 162; munus
confessarii, 163; denuncianda,
ib.; falsa accusatio, ib., 274;
omitting to denounce, 282
Specification, i, 245
Spells, i, 144
Spiritism, i, 143
Spiritual relationship, in Baptism,
ii, 81 ; in Confirmation, 90; and
Marriage, 221
Sponsors, in Baptism, ii, 81; in
Confirmation, 90
State and labour questions, i, 189
Sterility, ii, 215
Stipends for Mass, i, 153; pro-
perty of priest, 240; origin of,
ii, 113; law regarding, ib.;
manual and funded, 114;
registers of, 116
352
INDEX
Stole fees, not simony, i, 153;
whose property, 240
Stolen goods, and sale, i, 157;
receiver of, 271
Strangers, and law, i, 56; and
Baptism, ii, 78; and reserva-
tion, 158
Strikes, i, 189 f. ; picketing in,
275
Stuprum, see Criminal assault
Suicide, i, 194; indirect, 195
Sunday to be kept holy, i, 169,
357; servile work, 174; trading
on, 175 ; and English law, ib.
Supernatural acts, i, 4
Superstition, i, 140 ff.
" Superstitious uses," i, 317
Surety and clerics, ii, 22
Surgery and medical practice for-
bidden to clerics, ii, 22, 291
Suspension, ii, 262; ex informata
conscientia, ib.', violated, en-
tails irregularity, 263; special,
283
Suspicion, i, 34, 284
Table-turning, i, 143
Tempting God, i, 146
Tenant's, improvements, i, 245;
duties, 350
Ten commandments, see Deca-
logue
Theatre-going, i, 134; and clerics,
ii, 23
Theft, of sacred object, i, 149 ; in
general, 252; grave matter,
253; small thefts, 254; of what
is specially valued, ib.
Theological virtues, i, 105 ff.
Title to property, i, 242; by
occupation, ib. ; accession, 244 ;
prescription, 246
Tonsure, ii, 15
Trading forbidden to clerics, ii,
23
Treasure of Church in indul-
gences, ii, 294
Treasure-trove, i, 243
Trusts, and bequests, i, 317; and
combines, 340
Truth, right to, i, 292; require-
ments of, 293
Undue influence, i, 302
University, non-Catholic, i, 180
Use, i, 3 ; and custom, 67
Usury, i, 322; and Church, 323;
and modern times, 324
Vagi, i, 57
Vainglory, i, 99
Value, i, 321
Vendors and purchasers, i, 334
Vengeance belongs to public
authority, i, 100, 198
Vestments for Mass, ii, 121
Vicarii co-operator es, see Curates
Violence, i, 17; impediment of
marriage, ii, 229
Visitation of diocese, ii, 27
Vocation to priesthood, ii, 35;
to religion, 40
Voluntary actions, i, 5 ; divisions,
ib,; obstacles to, ii
Vote at elections, i, 193
Vow, violation of, a sacrilege, i,
148; nature of, 161; divisions,
ib.; mistake in, 162; fear, ib.;
who bound by, 163; ceases,
164; annulling of, ib.; dispen-
sation from, 165 ; reserved, 166 ;
chastity commuted, 167; com-
mutation of, ib.; of religion, ii,
38; of poverty, 44; of chastity,
49 ; of obedience, 5 1 ; and
marriage, 213, 222, 277, 280
Wage of workmen, i, 188
Wager, see Bet
War, i, 206 ; conditions for just,
ib.; what allowed in, 207;
restitution for unjust, 275
Warranty, i, 327
Wife, duties of, i, 185
Will, i, 315; whence power to
dispose by, ib.; form of, ib. ;
and canon law, 318; who may
make, ib. ; and undue influence,
ib.; and legitim, ib.; when
revoked, ib. ; executor of, 319;
probate of, ib.
Witchcraft, i, 144
Witness, duties of, ii, 8
Worship, i, 135, 138; kinds of,
ib. ; and Church, ib.
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